During the performance of a labor contract, for various reasons, the contract may be temporarily suspended. The suspension of a labor contract does not terminate the rights and obligations of the parties involved in the employment relationship; rather, it only pauses the execution of such obligations for a certain period of time.
So, what is the temporary suspension of a labor contract? What obligations arise for the parties involved in an employment relationship when such a suspension occurs?
In this article, NPLaw will help clarify some legal issues related to the above matter.
I. What is the temporary suspension of a labor contract?
The temporary suspension of a labor contract is understood as the temporary discontinuation of the execution of rights and obligations agreed upon in the contract for a specified period. The suspension may be based on mutual agreement or due to circumstances stipulated by law.
II. Legal provisions on the temporary suspension of labor contracts
1. Cases in which a labor contract may be temporarily suspended
The parties may agree to temporarily suspend the labor contract due to urgent personal reasons, or in cases as prescribed under Clause 1, Article 30 of the Labor Code 2019, including:
- The employee performs military service or joins the Militia and Self-Defense Force;
- The employee is temporarily detained or held in custody in accordance with criminal procedural law;
- The employee is subject to a decision to undergo education at a reformatory school, compulsory detoxification center, or compulsory education institution;
- A pregnant female employee (as regulated in Article 138 of this Code) who has a certified medical opinion stating that continued work may adversely affect the fetus has the right to suspend the contract;
- The employee is appointed as a manager of a single-member limited liability company with 100% charter capital owned by the State;
- The employee is authorized to perform rights and obligations of the state owner with respect to state capital in an enterprise;
- The employee is authorized to exercise the rights and obligations of an enterprise regarding capital contributed to another enterprise.
Thus, aside from mutual agreements, if an employee falls under any of the above circumstances, they are entitled to temporarily suspend their labor contract according to the law.
2. Rights and obligations of the parties during the suspension of a labor contract
a. During the suspension period
According to Clause 2, Article 30 of the Labor Code 2019, during the suspension of the labor contract, the employee is not entitled to salary or to the rights and benefits agreed upon in the contract. However, if there is an agreement between the employer and the employee regarding salary payment during the suspension, then the employee may still be paid accordingly.
b. After the suspension
Once the suspension period ends, within 15 days from the expiration date of the suspension, unless otherwise agreed upon by the parties, both parties must resume their contractual obligations as provided under Article 31 of the 2019 Labor Code:
- The employee must report back to the workplace;
- The employer must reinstate the employee to the position as specified in the labor contract if the contract remains valid.
III. Questions about the temporary suspension of labor contracts
1. Can a pregnant female employee suspend her labor contract? If so, for how long?
According to Point d, Clause 1, Article 30 of the Labor Code 2019, a pregnant female employee falling under the conditions set forth in Clause 1, Article 138 is entitled to suspend her labor contract. Specifically, if a certified medical institution confirms that continued work may negatively impact the fetus, she has the right to suspend her contract.
As for the duration, Clause 2, Article 138 of the Labor Code stipulates that the period of suspension shall be mutually agreed upon by the parties but must be at least equal to the period recommended by the competent medical institution. If there is no such recommendation, the suspension period is entirely subject to the parties' agreement.
Thus, a pregnant employee may suspend her contract if there is certified medical proof that continued work would harm the fetus. The duration of the suspension must meet or exceed the medically advised period, or be agreed upon by both parties in the absence of such advice, provided that the health of both the mother and fetus is safeguarded.
2. Is the suspension period counted toward annual leave?
According to Article 65 of Decree No. 145/2020/NĐ-CP, the time considered as working time for the purpose of calculating annual leave does not include the period during which the labor contract is suspended. Therefore, the suspension period shall not be counted toward the employee’s annual leave.
3. Is the employee entitled to salary during the suspension?
Pursuant to Clause 2, Article 30 of the 2019 Labor Code, during the suspension of a labor contract, the employee is not entitled to the agreed salary unless otherwise stipulated by the law or agreed upon by the parties.
Hence, the general rule is that no salary is payable during the suspension period unless there is a specific agreement between the employee and employer to that effect, which the law allows.
IV. Seeking legal advice on labor contract suspension
If you wish to temporarily suspend your labor contract or seek further information on this issue, please contact Lawyer Nguyễn Ngọc Phú – Director of NPLaw and a member of the Ho Chi Minh City Bar Association. With years of experience and in-depth legal expertise, he will provide professional advice and assistance.
To contact Lawyer Phú or NPLaw, please send your inquiry via email to: phu.nguyen@nplaw.vn or call directly at 0913 449 968.
This article provides comprehensive legal insights from NPLaw regarding the temporary suspension of labor contracts and addresses frequently asked questions based on actual legal practice. If you have further questions or need assistance, feel free to email us at legal@nplaw.vn or call 0913 449 968.
