In response to the fast-surging fourth wave of the covid 19 pandemic that has been wreaking havoc on Vietnam, the Government of Vietnam has introduced multiple measures on prevention and control the outbreak of Covid-19 pandemic, notably the Prime Minister’s Directive 15 No. 15/CT-TTg (Directive 15) and Directive No.16/CT-TTg (Directive 16) to contain the spread of the disease while ensuring the continuity of business activities. Directive 15 introduces “soft social distancing policy” when it mandates the suspension of social events and prohibition of social gatherings of 20 people or more in one place. Directive 16 imposes a stricter social distancing regulation, as it generally requires “every people” to stay at home, with the only exception cases of basic necessities (the Exceptions). Based on the above Directives, different cities and provinces in Vietnam have issued specific policies on social distancing measures applicable to the region from time to time. And in case the applicable policy is based on Directive 16, people working at enterprises that do not fall under the Exceptions list shall have to stay at home, and thus the enterprises in question will not be able to maintain the operation. As such, a measure for the business to maintain the operation while coping with the Covid-19 pandemic has been introduced, with a so-called “3-on the spot” model (3T model). The 3T model/principle requires that in case strict social distancing order based on Directive 16 is announced, the enterprises that do not fall under the list of Exception but wish to maintain the operation will have to organize facilities for the employees to stay and work within the enterprises’ premises, being separate (isolate) from the outside area. Although the model is expected to be an effective method for the government to accomplish the dual objectives of controlling Covid-19 while maintaining the operations of businesses, over a month since its first introduction, the social distancing policy and 3T model have posed unprecedented challenges and confusions for enterprises in the application especially on employment-related matters. In this note, we further discuss and clarify the frequently asked question recently pop up from the increasing outbreak of Covid-19 in Vietnam concerning the 3T model.

1. Whether the implementation of 3T policy to prevent the suspension of operation requests consent/agreement of the employees on same? The quick answer is YES. 3T model is the condition for the enterprise to maintain the operation. This is not a mandatory requirement of local authority to the enterprises. Strictly speaking, implementing 3T model means that the employees shall be “locked down” within the premise of the enterprise the whole time in order to maintain the operation (the plain interpretation of “3-on the spot” measure means the employees need to “eat”, “sleep”, and “work” all on-site). All policies and regulations on Covid-19 prevention at present stipulate 3T model as a condition applicable to the employers, not obligation applicable to the employees. Therefore, the employees may refuse the “lockdown” proposal from the employers and compelling the employees to 3T model may give rise to employment disputes. Therefore, employers still need to obtain consent/agreement from the employees on the implementation of 3T model. 2. In case the workplace is not subject to 3T model requirements under local regulations yet, can Enterprise proactively prepare 3T model arrangements? YES. However, as noted above, the implementation of 3T model always requires consent/agreement of the employees on same. 3. Can employers discipline employees who refuse to cooperate and implement 3T model arrangements? NO. Under prevailing regulations, we do not see any legal basis for employers to discipline the employees who refuse to cooperate with 3T model proposal from employers. As noted above, 3T model requires consent/agreement of the employees on same, and employers do not have ground to discipline the employees due to their refusal. 4. What are the available solutions to deal with employees who refuse the 3T model proposal? To answer this question, it is important to clarify whether the workplace of the employer is subject to 3T model requirement of local authority or not. a) If the workplace is subject to 3T model requirement of local authority: this means that enterprises (who do not fall under the Exceptions list) are only allowed to operate if the 3T model is implemented, failing which the operation must be suspended. In this case, Ministry of Labor, Invalids and Social Affairs has recently issued Official Letter No. 2844/LDTBXH-PC (OL 2844) which confirms that if the employees refuse to cooperate and implement 3T model arranged by the employers, the employers may either:

(i) put the employees on “suspension of work” and pay the employees the suspension pays in accordance with Article 99.3 of the Labor Code, or (ii) reach an agreement with the employees on “suspension of labor contract” in accordance with Article 30.1(h) of the Labor Code, or (iii) reach an agreement with the employees on “leave without pay” in accordance with Article 115.3 of the Labor Code, or (iv)reach an agreement with the employees on mutual termination of labor contract in accordance with Article 34.3 of the Labor Code, or (v) unilaterally terminate the labor contract in accordance with Article 36.1(c) of the Labor Code. It should be noted that before exercising options (i) or (v) discussed above, it is advisable for employers to check and justify that the local regulations applicable to their workplaces clearly require the compliance of 3T model as a must-have for maintaining the operation. b) If the workplace is not subject to 3T model requirement: this means that enterprises (who do not fall under the Exceptions list) would still be able to operate, because their workplace areas are not under strict lockdown based on Directive 16 yet. The implementation of 3T model, in this case, is required by local authority, but the proactive preparation of the employers to cope with Covid-19 threat. Under such circumstance, strictly speaking, the rejection of employees on 3T model proposal, judging alone, shall not trigger employers’ right to unilateral put the employees on “suspension of work” or unilateral termination of the contract. Employers should only consider options from points (ii) to (iv) discussed above. Compelling the employees on “work suspension” or unilateral termination could give rise to employment disputes, therefore should be carefully considered as the last resort. 5. If employers are not able to arrange 3T model and as the consequence, business operation is suspended, what are available solutions to for employment planning? If the enterprises’ workplaces are subject to 3T model requirement issued by local authority but it is not practically or economically feasible for the enterprises to arrange 3T model, the operations shall be suspended. In this case, employers may consider solutions discussed at point 4(a) above for their employment planning. Please note that this legal update only provides general view over the subject matters and does not constitute specific legal advice. Should you need any assistance or advice on any specific matter, please feel free to contact us for comprehensive legal analysis If you have any questions or would like to know how this might affect your business, please contact the key contact. 

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The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon by any party for any purpose.