Is Annual Leave Entitlement Maintained During Maternity Leave? Yes. Pursuant to Article 65 of Decree No. 145/2020/ND-CP, Vietnamese law recognizes maternity leave periods as working time for the purpose of calculating annual leave entitlement. This article not only addresses employees’ concerns but also serves as a compliance guide for FDI enterprises. Its purpose is to help businesses minimize legal risks and build a positive corporate culture in Vietnam.
Is Annual Leave Entitlement Maintained During Maternity Leave?
Legal Basis
Clause 7, Article 65 of Decree No. 145/2020/ND-CP provides a direct and definitive answer:
“The period of leave under maternity benefits in accordance with social insurance laws shall be counted as working time for the purpose of calculating annual leave entitlement.”
In addition, Article 39 of the Law on Social Insurance 2014 also confirms that maternity leave is an official entitlement granted to employees participating in social insurance, rather than an optional or discretionary leave period.
Why Is This the Case?
Unlike personal leave or unpaid leave, maternity leave is a period during which employees fulfill an important social responsibility — caring for the next generation. The law protects and encourages this responsibility.
Therefore, throughout the maternity leave period, the labor contract remains effective. Employees continue to be recognized as employees of the company and retain rights associated with continuous years of service, including annual leave entitlement.
This regulation ensures that employees (both female and male employees entitled to maternity-related leave) are not disadvantaged in their careers due to childbirth-related reasons. It also contributes to creating an equal working environment that progressive FDI enterprises aim to promote.
Detailed Calculation Guidance and Practical Scenario
Formula
To determine whether an employee remains eligible for annual leave entitlement after maternity leave, you need to apply the following formula:
Total working time for annual leave calculation = Actual working time + Maternity leave period under Social Insurance regulations.
Actual working time: refers to the total number of months/days during which the employee is physically present at the company or actively working during the annual leave calculation year.
Maternity leave period: is legally considered as working time. This is the key point ensuring that an extended leave period does not affect employee benefits and annual leave entitlement.
Illustrative Example
Employee: Ms. Nguyen Thi A, an Accountant at a Japanese company (100% FDI-owned) in Hanoi.
Date of employment commencement: January 1, 2022
Length of service: Less than 5 years → Ms. A is entitled to 12 annual leave days.
Scenario: Ms. A gave birth and started her maternity leave on June 1, 2023.
Maternity leave duration: 6 months (in accordance with the Law on Social Insurance 2014).
Ms. A returned to work on December 1, 2023.
Calculation of Ms. A’s annual leave entitlement for 2023:
Item | Period | Details |
Actual working time | 6 months | From 01/01/2023 to 31/05/2023 (5 months) and from 01/12/2023 to 31/12/2023 (1 month). |
Maternity leave period | 6 months | From 01/06/2023 to 30/11/2023 (counted as working time). |
Total qualifying period | = 12 months | (6 months actual working time + 6 months maternity leave). |
Conclusion | Ms. A completed 12 months of qualifying service and is therefore entitled to the full 12 days of annual leave for the year 2023. |
Common Practical Scenarios and Guidance
Below are recommended approaches for situations commonly encountered by both employees and HR departments in FDI companies:
Scenario 1: Employee Wants to Carry Forward Unused Annual Leave After Childbirth
Situation: Ms. A returned to work at the end of 2023 and did not use all 12 days of annual leave. She wishes to carry forward the remaining leave days to take a longer vacation with her family in the following year.
Legal solution (Article 115 of the Labor Code): Employees have the right to reach an agreement with the employer to carry forward unused annual leave from the current year to the following year.
Recommendation for FDI Enterprises: Establish a clear process (through written documentation or email) to record such annual leave carry-forward agreements. This is also an opportunity to demonstrate flexibility and understanding of employees’ work-life balance needs.
Scenario 2: If an Employee Resigns After Maternity Leave, How Should the Company Handle Remaining Annual Leave?
Situation: After completing her maternity leave, Ms. A decides to resign. She has not used her 2023 annual leave entitlement (12 days).
Legal solution: The employer is required to make payment in cash for all unused annual leave days.
Important note for HR: This payment must be calculated and fully settled within 14 days from the date of termination of the labor contract (pursuant to Article 48 of the Labor Code). Failure to do so may result in employee complaints.
Scenario 3: Is Paternity Leave for Male Employees Counted Toward Annual Leave Entitlement?
Yes. The principle is exactly the same.
Male employees may take leave under maternity benefits when their wives give birth (5–14 days under the Law on Social Insurance, or longer in special circumstances). This period is counted as working time for annual leave calculation purposes. This regulation ensures equality and encourages shared parental responsibility.
Guidance for Employees and Dispute Resolution
Professional Email Template for Communication with the HR Department
REFERENCE EMAIL TEMPLATE
Subject: Request for Confirmation and Agreement on Annual Leave Entitlement Following Maternity Leave – [Your Full Name]
To: HR Department / Mr./Ms. [Name of HR Manager or Direct Supervisor]
My name is [Full Name], and I am an employee of [Department Name], Employee ID [Employee ID].
I officially returned to work following my maternity leave on [Return Date/Month/Year]. First and foremost, I would like to sincerely thank the Company for its support and assistance during the past period.
To ensure consistency regarding my employment benefits, I would like to request confirmation from the HR Department regarding my annual leave entitlement. Pursuant to Article 65 of Decree No. 145/2020/ND-CP, my maternity leave period (from [Leave Start Date] to [Leave End Date]) is considered working time for the purpose of calculating annual leave entitlement.
Accordingly, I would like to request the HR Department to:
Confirm the number of annual leave days to which I am entitled for the year [Year of Maternity Leave].
Agree on an arrangement regarding the use of these annual leave days (for example: using them within the current year, carrying them forward to the following year in accordance with regulations, or other options in line with company policies).
I have attached a scanned copy of my maternity leave decision/document for reference purposes. I am available for a brief discussion if necessary to provide further clarification.
I look forward to receiving your response at your earliest convenience.
Sincerely,
[Full Name]
[Job Title] – [Department]
Phone Number: [Phone Number]
4-Step Resolution Roadmap if the Enterprise Fails to Comply (Required Actions)
In rare cases where the enterprise still refuses to grant your entitlements despite good-faith discussions, do not be discouraged. Please follow the steps below:
Step 1: Re-address the Matter Through Formal Written Communication
Please resend the email (you may use the sample above). The content should emphasize that the enterprise is not complying with Article 65 of Decree No. 145/2020/ND-CP.
Note: You should retain all sent and received emails as supporting evidence. This step is essential as it demonstrates your effort to resolve the matter internally.
Step 2: Contact the Grassroots Trade Union (If Any)
Submit a request or discuss the matter directly with the Executive Committee of the Trade Union at the company, as it functions as the representative body responsible for protecting employees’ lawful rights and interests and has a voice with the employer.
Step 3: File a Complaint with the Competent State Authority
Submit a complaint (which may be filed online) to the Inspectorate of the Department of Labour, Invalids and Social Affairs of the province/city where the enterprise’s head office is located.
The Labour Inspectorate has the authority to conduct inspections, require the enterprise to provide relevant records and documents, and issue decisions on handling violations (administrative penalties and compulsory implementation of employee entitlements).
Step 4: Initiate a Lawsuit Before the Court (Last Resort)
If the above measures are ineffective, you may file a labour lawsuit with the competent People’s Court.
This step is generally time-consuming and costly, but it is the most effective measure. You should consider seeking advice from a lawyer specializing in labour matters.
At this point, you have found the answer to the question: “Are employees entitled to annual leave benefits during maternity leave?” This is a mandatory entitlement in compliance with Vietnamese labour laws. For FDI enterprises, ensuring compliance not only helps mitigate legal risks but also creates a competitive advantage in recruitment and talent retention in the Vietnamese market. If you require in-depth consultation on labour policy systems compliant with Vietnamese regulations, please contact KMC’s experts immediately.
