To: Social security agencies of provinces and centrally affiliated cities

On September 6, 2021, Vietnam Social Security issued Official Dispatch No. 2802/BHXH-CSXH on guidance on the social insurance for employees who have worked for bankrupt employers that have not yet fully paid social insurance premiums. This guidance covers employees who have met all conditions, including conditions regarding the confirmed period of payment to the social insurance fund (excluding unpaid periods). However, there is no guidance from competent authorities for employees who have worked at other employers that have not yet paid enough social insurance premiums.

Based on the opinion of the Ministry of Labor, War Invalids and Social Affairs in Official Dispatch No. 2591/LDTBXH-BHXH dated August 9, 2021 and number 1025/LDTBXH-BHXH dated March 23, 2023, the consolidated guidance for social security agencies of provinces and centrally affiliated cities, Vietnam Social Security has issued a new guidance on social insurance for employees at employers that have not fully paid social insurance premiums. The new guidance includes the following:

I. Employers that have not fully paid social insurance premiums include:

- Employers that are in bankruptcy proceedings;

- Employers that have had the bankruptcy decision of the Court;

- Employers that no longer operate at the registered address;

- Employers that have no legal representative.

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1. Entities: Employees at employers who have not fully paid social insurance premiums as mentioned in Section I of this Official Dispatch.

2. Confirmation of the time of participation in the social insurance book for employees to serve as a basis for payout of social insurance benefits:

Comply with Point 3.2, Clause 3, Article 46 of Decision No. 595/QD-BHXH dated April 14, 2017 of Vietnam Social Security, amended at Clause 72, Article 1 of Decision No. 505/QD-BHXH dated March 27, 2020 of Vietnam Social Security:  Confirming up-to-date time of payment of social insurance, unemployment insurance (UI), occupational accident and occupational disease insurance premiums, in the social insurance book.

3. Voluntary payment of lump-sum social insurance premiums for missing periods:

3.1. Entities:  Employees specified in Item b, Point 2.1, Clause 2, Section III of this Official Dispatch.

3.2. Amount: According to Clauses 1 and 4, Article 10 of Decree No. 134/2015/ND-CP dated December 29, 2015 of the Government; in which, the employee can choose their income as the basis for paying voluntary social insurance premiums as per the law.

4. Procedures for documentation of and procedures for confirmation of period of participation in social insurance for employees at the employers who have not fully paid social insurance premiums; the collection of social insurance premiums for employees specified in Item b, Point 2.1, Clause 2, Section III of this Official Dispatch shall comply with the process of collecting social insurance premiums, health insurance (HI), unemployment insurance (UI), and occupational accident and occupational disease insurance; management of social insurance books and health insurance cards issued together with Decision No. 595/QD-BHXH dated April 14, 2017 of Vietnam Social Security, which was amended in Decision No. 505/QD-BHXH dated March 27, 2020 and No. 490/QD-BHXH dated 28/3/2023 of Vietnam Social Security.

5. Other financial sources to pay the unpaid social insurance premiums: This is the amount not paid by the employee or his/her family/relative.

III. Payout of social insurance benefits for employees

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a) The social security agency shall pay out the employee's benefits related to sickness, maternity, convalescence, and health rehabilitation based on their actual period of payment of social insurance premiums.

b) In case of childbirth, child adoption, or surrogacy:  The employee has paid social insurance premiums to the sickness and maternity fund (excluding unpaid periods) for 6 months or more, under Clause 2, Article 31 of the Law on Social Insurance 2014, Clause 2, Article 9 of Circular No. 59/2015/TT-BLDTBXH dated December 29, 2015 of the Ministry of Labor, War Invalids and Social Affairs, Clause 5, Article 1 of Circular No. No. 06/2021/TT-BLDTBXH dated 07/07/2021 of the Ministry of Labor, War Invalids and Social Affairs, or 3 months or more as prescribed in Clause 3, Article 31 of Law on Social Insurance 2014, if there are grounds for determination that the employee has not been paid the benefit, the social security agency shall pay out the maternity benefit according to regulations at the time the employee gives birth, adopts a child, or claims motherhood in surrogacy.

c) When the unpaid social insurance premium is covered by other employer or other financial source and changes the benefit amount, the benefit amount shall be adjusted according to the relevant policy (at the time the employee is eligible for the benefit) for additional payment.

2. Retirement benefit

2.1. The social security agency shall provide pensions in the following cases:

a) Employees who reach the retirement age and have actually paid social insurance premiums for at least full 20 years (excluding unpaid periods) shall be entitled to a pension benefit according to the relevant policy in effect at the time of eligibility for pension.

When unpaid social insurance premiums have been covered by the employer or other financial source, the period of payment of social insurance premiums (if any) will be added to adjust the pension amount which has been paid out according to the relevant policy so far. The difference in benefits will then be paid to the employee from the mentioned time.

b) Employees who reach the retirement age and have actual period of payment of social insurance premiums of 10 years to under 20 years (excluding unpaid periods) and wish to pay lump-sum voluntary social insurance premiums for the missing periods shall be entitled to monthly pension; the pension receipt time shall be conformable with Clause 2, Article 5 of Circular No. 01/2016/TT-BLDTBXH dated February 18, 2016 of the Ministry of Labor, War Invalids and Social Affairs.

When unpaid social insurance premiums have been covered by the employer or other financial source, the period of payment of social insurance premiums (if any) will be added to adjust the pension amount according to the relevant policy in effect at the time when the previous pension was paid out. The difference in benefits will then be paid to the employee from the mentioned time (not refunding the paid voluntary social insurance premiums to be consistent with the guidance in Official Dispatch No. 276/LDTBXH-BHXH dated February 6, 2023 of the Ministry of Labor, War Invalids and Social Affairs).

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a) As for beneficiaries specified at Points b, c, d, Clause 1, Article 60 of the Law on Social Insurance 2014:

Make one-time payout corresponding to their actual period of payment of social insurance premiums. If the unpaid social insurance money has been covered by the employer or other financial source, the social security agency shall make an additional payout related to the one-time payout as prescribed in point dd of this point.

b) As for beneficiaries specified at Point a, Clause 1, Article 60 of the Law on Social Insurance in 2014 who have not paid full 20 years of social insurance premiums (including the period that social insurance premiums have not been paid), the payout shall be made as similar as the case in sub-point a of this point.

c) As for beneficiaries specified in Resolution No. 93/2015/QH13 dated June 22, 2015 of the National Assembly who have not paid social insurance premiums for at least full 20 years (including the period that social insurance premiums have not been paid), the payout shall be made as similar as the case in sub-point a of this point.

An employee's eligibility for a lump-sum social insurance benefit is determined one year after their resignation as prescribed in Clause 1, Article 1 of Resolution No. 93/2015/QH13. This is based on the time of their last resignation before the employee applies for a lump-sum social insurance benefit.

d) When the unpaid social insurance premium has been covered by the employer or other financial source, the social security agency shall record and reserve the entire period of additional payment.  If the employee continues to participate in social insurance, the time they paid additional social insurance premiums will be added to the period of their continued participation in social insurance for the purpose of calculating their social insurance benefit payout.

dd) In case the unpaid social insurance premium has been covered by the employer or another financial source and the employee applies for a lump-sum social insurance benefit for the additional payment period, the social security agency shall combine these two periods in order to re-determine the new benefit amount according to the Law on Social Insurance 2014 at the time of latter benefit payout and deduct the re-determined benefit amount corresponding to the former period as the basis for previous payout of lump-sum social insurance benefit, including the rounded time (if any) for additional payment to employees.

For example:  Mr. Nguyen Van A has a period of participating in social insurance from January 2016 to October 2019 of 3 years and 10 months; in which the employer has paid social insurance premiums for Mr. A from January 2016 to July 2018, the premiums for the period from August 2018 to October 2019 have not yet been paid. It is assumed that, in June 2021, Mr. A applies for lump-sum social insurance payout with the average monthly salary for social insurance payment of 6,000,000 VND. The social security agency shall pay out a lump-sum social insurance benefit to Mr. A with the confirmed period of payment to the social insurance fund from January 2016 to July 2018 for 2 years and 7 months as follows:

Mr. A's lump-sum social insurance benefit in June 2021 is:

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It is assumed that Mr. A may pay additional social insurance premiums from August 2018 to October 2019 and he applies for lump-sum social insurance benefit for the additional payment period.  The social security agency shall settle the application as follows:

- The total period of payment of social insurance premiums for Mr. A is 03 years and 10 months, rounded up to 4 years.

- It is assumed his average monthly salary calculated at the time of August 2023 is VND 7,000,000.

- The total amount of lump-sum social insurance benefit after recalculation is:

7,000,000 VND x 4 years x 2 months = 56,000,000 VND.

- The payout amount that Mr. A is eligible (after recalculation):

7,000,000 VND x 3 years x 2 months = 42,000,000 VND.

- The amount of Mr. A's additional benefit is:

56,000,000 VND - 42,000,000 VND = 14,000,000 VND.

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3. Death benefits

3.1. A funeral allowance will be paid to the person who takes care of the funeral of an employee who has actual period of compulsory social insurance of at least 12 months according to Clause 1, Article 66 of the Law on Social Insurance 2014, or the total time of compulsory and voluntary payment of social insurance premiums of at least full 60 months as prescribed in Clause 1, Article 80 of the Law on Social Insurance 2014 (excluding unpaid periods).

3.2. A monthly survivorship allowance will be paid to a relative of a deceased employee who has paid compulsory social insurance premiums for at least full 15 years (excluding unpaid periods), if the relative chooses to receive a monthly allowance instead of a lump-sum payment. The time to receive the monthly survivorship allowance shall comply with the provisions of Clause 3, Article 68 of the Law on Social Insurance 2014.

3.3. Payout of lump-sum survivorship allowance in the following cases:

a) The employee has not paid enough full 15 years of compulsory social insurance premiums according to Clause 1, Article 69 of the Law on Social Insurance in 2014 (including unpaid periods);

b) A lump-sum survivorship allowance will be paid to a relative of a deceased employee who has paid compulsory social insurance premiums for at least full 15 years (excluding unpaid periods), if the relative chooses to receive a lump-sum allowance instead of the monthly allowance to which he/she is also entitled as prescribed in clause 3 Article 69 of the Law on Social Insurance in 2014.

c) A lump-sum survivorship allowance will be paid to a relative of a deceased employee who has paid compulsory social insurance premiums for at least full 15 years (including unpaid periods), if the relative chooses to receive a lump-sum allowance instead of the monthly allowance to which he/she is also entitled as prescribed in clause 3 Article 69 of the Law on Social Insurance in 2014.

d) A lump-sum survivorship allowance will be paid to a relative of a deceased employee who has paid compulsory social insurance premiums for at least full 15 years (including unpaid periods), if the relative is not eligible for monthly allowance as prescribed in clause 2 Article 67 of the Law on Social Insurance in 2014.

dd) A lump-sum survivorship allowance will be paid to a relative of a deceased employee who has paid compulsory social insurance premiums for at least full 15 years (excluding unpaid periods), if the relative is not eligible for monthly allowance as prescribed in clause 2 Article 67 of the Law on Social Insurance in 2014.

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3.4. A relative of a deceased employee who has paid compulsory social insurance premiums for at least 15 years (but the actual period of premium payment is not enough for full 15 years) will not be paid out a survivorship allowance, even if he/she applies for and is eligible for a monthly allowance.

4. Documentation and procedures

4.1. Sickness benefits; maternity benefits as prescribed in Article 32, Article 33, Clause 2, Article 34, Article 37 of the Law on Social Insurance 2014; allowance for convalescence and health rehabilitation:  Comply with the Law on Social Insurance 2014 in which the list of employees taking leave related to sickness, maternity, convalescence and health rehabilitation is established by the Provincial Labor Confederation under the guidance of the Ministry of Labor, Invalids and Social Affairs in Official Dispatch No. 1188/LDTBXH-BHXH dated April 12, 2016. This list does not include employees whose employers are undergoing bankruptcy procedures.

4.2. A lump-sum maternity benefit will be paid to female employees giving birth, employees adopting children, surrogate mothers and intended mothers; male employees and husbands of intended mothers:  in the same way as an employee quits their job before the time of childbirth, child adoption, claiming motherhood in surrogacy.

4.3. Pension, death benefits: in the same way as an employee who reserves their period of participation in social insurance.

4.4. Documentation and procedures for payout of social insurance benefits in case there is no legal representative

The time of termination of the employment contract for determining social insurance benefits for employees with no legal representative will be determined as follows: Social security agencies of provinces and centrally run cities coordinate with the local authorities to determine the time of termination of the employment contract as prescribed in Clause 7 Article 34 and Clause 2 Article 45 of the Labor Code (calculated from the date the business registration authority, affiliated to the People’s Committee of province, issues a notice that there is no legal representative or legal representative’s authorized person).

IV. Implementation

1. Information Technology Center

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a) When an officer enters the social insurance numbers of employees, the system should show the corresponding status of the employer who has not fully paid the social insurance premiums stated in Section I of this Official Dispatch.

b) Add the field “requirements for payout of benefits” under "Official Dispatch 1025" for the processing officer to integrate.

c) Estimate the remaining amount to be paid for each type of benefit for cases that have been paid out according to the guidance in this Official Dispatch, if the beneficiaries choose to receive the benefit under Official Dispatch 1025, when the unpaid social insurance premiums are covered by the employer or another financial source.

2. Social security agencies of provinces and centrally affiliated cities shall:

2.1. Report to the Steering Committee for the implementation of social insurance and health insurance policies in the provinces/cities to direct specialized agencies to determine the time of termination of employment contracts at employers without legal representatives as prescribed in Clause 7 Article 34 and Clause 2, Article 45 of the Labor Code.

2.2. Implement this Official Dispatch and promptly report arising problems (if any) to Vietnam Social Security for guidance.

2.3. Review and aggregate data for the case specified at point 3.4 Clause 3, Section III of this Official Dispatch, and then send it to the Vietnam Social Security, together with a proposal for settlement plan before August 1, 2023 so that the Vietnam Social Security can have a basis to report to the Ministry of Labor, War Invalids and Social Affairs for guidance.

3. The affiliated entities of the Vietnam Social Security shall, according to their functions and tasks, guide and organize the implementation of relevant contents.

This Official Dispatch supersedes Official Dispatch No. 2802/BHXH-CSXH dated September 6, 2021 of Vietnam Social Security./.

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PP. GENERAL DIRECTOR
DEPUTY GENERAL DIRECTOR




Le Hung Son