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Miscarriage entitled to maternity benefits?

My wife was 5 months pregnant when she had a miscarriage, currently in poor health, she cannot go back to work. So is she entitled to maternity leave? (Minh Tuan)

Advisory lawyer

According to Article 33 of the Law on Social Insurance 2014 (Law on Social Insurance), miscarriage is one of the cases where female employees are entitled to maternity leave. The maximum time off work in case of miscarriage is regulated as follows:

– 10 days if the pregnancy is less than 5 weeks old.

– 20 days if the pregnancy is from 5 weeks to under 13 weeks.

– 40 days if the pregnancy is from 13 weeks to less than 25 weeks.

– 50 days if the pregnancy is 25 weeks or more.

The time off from work to enjoy the maternity regime as prescribed above includes public holidays, New Year holidays, and weekly rest days.

Clause 1, Clause 2, Article 39 of the Law on Social Insurance also stipulates that the maternity benefit rate prescribed in Articles 32, 33, 34, 35, 36 and 37 of the Law on Social Insurance is calculated as follows:

– The monthly allowance is equal to 100% of the average monthly salary on which social insurance premiums are based for the 6 months before taking leave for maternity benefits. If the employee has paid social insurance premiums for less than 6 months, the maternity benefit rate prescribed in Articles 32, 33, Clauses 2, 4, 5 and 6, Article 34 and Article 37 of the Law on Social Insurance is the average amount monthly salary of the months for which social insurance has been paid.

– The time off from work to enjoy the maternity regime from 14 working days or more in a month is counted as the period of payment of social insurance, employees and employers are not required to pay social insurance premiums.

Thus, based on the above provisions, his wife is still entitled to maternity leave for a maximum of 40 days, including public holidays, New Year holidays and weekly breaks. At the same time, his wife will be paid a salary for that number of days off at the rate equal to 100% of the average monthly salary and wages on which social insurance premiums are based for the six preceding months before the maternity leave. In case his wife has paid social insurance for less than 6 months, the maternity benefit rate is the average monthly salary of the months in which social insurance has been paid.

Lawyer Huynh Ai Chan

Ta Pha Law One Member Limited Liability Company

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