I. Introduction
In practice, some employers terminate employment contracts after receiving the results of a periodic medical examination indicating that an employee’s health condition is “unsatisfactory” or “not suitable” for the job. This raises an important legal question: does such a health assessment constitute a lawful ground for unilateral termination under Vietnamese labour law?
The short answer is no, unless the statutory conditions prescribed by law are fully satisfied.
II. What Does Vietnamese Law Provide?
1. Health-Related Grounds for Unilateral Termination
Under Article 36 of the Labour Code 2019, an employer may unilaterally terminate an employment contract on health-related grounds only where the employee has suffered from an illness or accident and has undergone continuous treatment for:
- 12 consecutive months in the case of an indefinite-term employment contract;
- 6 consecutive months in the case of a fixed-term contract with a duration of 12 to 36 months; or
- More than half of the contract term in the case of a contract with a duration of less than 12 months,
and the employee’s working capacity has not recovered following such treatment.
Accordingly, three cumulative conditions must be met: (i) the employee is suffering from an illness or accident; (ii) the employee has undergone treatment for the statutory period; and (iii) the employee remains unable to recover adequate working capacity.
2. Is an Unsatisfactory Periodic Health Examination a Lawful Ground for Termination?
No.
A periodic health examination indicating that an employee’s health condition is inadequate does not constitute a statutory ground for unilateral termination under Article 36 of the Labour Code 2019.
Vietnamese labour law provides an exhaustive list of circumstances in which an employer may unilaterally terminate an employment contract. Employers are therefore not permitted to expand these grounds based on internal policies or subjective assessments of an employee’s fitness for work.
3. Circumstances in Which Termination Is Strictly Prohibited
Pursuant to Article 37 of the Labour Code 2019, an employer is prohibited from unilaterally terminating an employment contract where the employee is:
- Receiving medical treatment or rehabilitation for illness, injury, or occupational disease, except where the statutory treatment period under Article 36 has been exceeded;
- Taking annual leave or other approved leave;
- Pregnant, on maternity leave, or raising a child under 12 months of age.
III. Legal Consequences of Unlawful Termination
1. Civil Liability
Where an employer unlawfully terminates an employment contract, Articles 39 and 41 of the Labour Code 2019 require the employer to:
- Reinstate the employee to his or her former position;
- Pay salary and make compulsory social insurance, health insurance, and unemployment insurance contributions for the period during which the employee was unable to work;
- Pay additional compensation equivalent to at least two months’ salary under the employment contract;
- Compensate the employee for any violation of statutory notice requirements.
If the employee does not wish to return to work, the parties may agree to terminate the employment relationship, in which case severance benefits and additional compensation may be payable.
2. Administrative Sanctions
Under Decree No. 12/2022/ND-CP, employers may be subject to administrative penalties for unlawful termination.
Depending on the number of affected employees, fines imposed on organizations may reach up to VND 40 million. Higher penalties may apply in cases involving pregnant employees, employees on maternity leave, or employees raising children under 12 months of age, together with remedial measures requiring reinstatement of the employee.
IV. Practical Recommendations for Employers
When a periodic health examination identifies health concerns, employers should consider the following lawful alternatives:
| Situation | Recommended Legal Approach |
|---|---|
| Employee’s health condition is no longer suitable for the current position | Reassign the employee to a more suitable position where appropriate |
| Employee has undergone treatment for the statutory period and remains unable to work | Apply the termination ground under Article 36 of the Labour Code 2019, subject to compliance with notice requirements |
| Both parties agree to end the employment relationship | Execute a mutual termination agreement, which is generally the safest legal option |
| Employee is pregnant, on maternity leave, or raising a child under 12 months of age | Do not terminate the employment contract on health-related grounds |
V. Conclusion
An employer may not lawfully terminate an employment contract solely because a periodic health examination indicates that an employee’s health condition is unsatisfactory. Such action is likely to constitute unlawful unilateral termination and may expose the employer to significant civil liability and administrative sanctions.
As a matter of best practice, employers should consider reassignment, workplace accommodation, or mutual termination arrangements rather than relying on health examination results as a standalone basis for dismissal.
CONTACT LEGAL CONSULTANT:
TLA Law is a leading law firm with a team of highly experienced lawyers specializing in criminal, civil, corporate, marriage and family law, and more. We are committed to providing comprehensive legal support and answering all your legal questions. If you have any further questions, please do not hesitate to contact us.
1. Lawyer Vu Thi Phuong Thanh, Ha Noi Bar Association
Email: vtpthanh@tlalaw.vn
2. Lawyer Tran My Le, Ha Noi Bar Association
Email: tmle@tlalaw.vn
Nguyen Thuy Duong