Asia-Pacific employment law bulletin 2022
Developments in the light of COVID-19
According to the Ministry of Health’s latest statistics, the number of vaccine doses rolled out by late January has exceeded 170 million doses. 40 out of 63 provinces in Vietnam have over 90% of their populations vaccinated with two doses.
As of date, travellers coming from countries that have detected the Omicron variant will have to undergo a quick test for COVID-19 before boarding and at arrival in Vietnam at their own cost. The self-quarantine locations like residences and hotels must meet the standards issued by the Ministry of Health, if not, the quarantine of such travellers will have to be in centralised facilities. In addition, according to the Vietnam’s Immigration Department, Vietnam has discontinued the automatic stay extension for foreigners stranded in Vietnam with effect from 15 January 2022. This stay extension measure had earlier been applied to foreign tourists who had entered the country since 1 March 2020, due to border restrictions caused by the pandemic.
Draft decree on personal data protection
Despite its expected issuance date of 1 December 2021, the long-awaited decree on personal data protection of Vietnam, anticipated to be the first ever overarching regulation on personal data, remains in draft form. The latest publicly available version of the Draft PDP Decree is the second version from February this year (the “Draft PDP Decree”). The Draft PDP Decree addresses multiple legal issues, including certain key issues that are relevant to a company as an employer in Vietnam:
Under the publicised version of the Draft PDP Decree, a “data processor” (which could include an employer) is required, among other things, to obtain qualified consent of the data subject prior to any data processing activity. “Qualified consent” must meet the following requirements:
(i) it must be given on a voluntary basis;
(ii) it must be express and written consent - silence does not constitute consent;
(iii) it must be informed consent, i.e. the data subject has been given the information on the type of personal data to be processed, the purpose of data processing, the information of the party who processes and shares personal data, conditions to share or transfer personal data to another third party as well as other rights of the data subject in relation to its personal data processing in accordance with law;
(iv) if the data processed is “sensitive data” as prescribed under the Draft PDP Decree, the data subject must be informed that their data is sensitive;
(v) it must be in a printable/copiable form (e.g. by an email).
Upon the official issuance of this decree, employers who have obtained employees’ consent for the processing of personal data in the past may need to re-visit their records to consider whether they are sufficient in the light of this new decree.
Cross-border transfer conditions
In addition, the Draft PDP Decree requires a “data processor” to satisfy certain conditions in order to transfer personal data across borders, including, that there are documents evidencing that the destination country has passed regulations on personal data protection that are of equal or higher level of security as the Draft PDP Decree or the data processor undertakes to apply measures to protect personal data of the data subject and the cross-border transfer has been approved in writing by a “committee on personal data protection” to be established in Vietnam.
This poses a number of questions including:
- Whether cross-border transfer include storage of personal data in a foreign server or in a cloud, or how about local server being accessible by foreign parent companies?
- Whether these conditions, together with the requirements for “qualified” consent, will remain the same in the officially issued version of this decree, and if/when such version is issued?
Employers in Vietnam are advised to monitor the status of this draft decree, in particular employers which are subsidiaries of international groups and/or employers which engage offshore service providers which process employee data.
Relaxed conditions in applying for work permits
In light of the difficulties caused by the COVID-19 pandemic, several interim measures to support employers and employees have been issued, e.g. preferential CIT tax rates, preferential social insurance contribution rates, and monetary support.
In addition, the Government went further by issuing Resolution 105/NQ-CP dated 9 September 2021 requesting the Ministry of Labour, Invalids and Social Affairs (“MOLISA”) to instruct the local labour authorities to loosen certain existing conditions/documents for work permit applications for foreign employees, including, among others:
- Copies of the foreign employees’ passports in certain work permit application dossiers no longer need to be legalised/consularised copies (i.e. scanned copies should be sufficient);
- For a foreign expert: Among other conditions, 3 years of working experience in a department which is “suitable” (without detailing what is suitable) for the foreign employee’s position in Vietnam, instead of such 3 years having to be in the same department which (i) the foreign employee was trained/educated and (ii) is suitable for the foreign employee’s position in Vietnam; and
- A foreign employee holding a valid work permit may be assigned or seconded to work in another province/city for a period of not more than 6 months.
Enforcement of the above changes is subject to the specific local labour authorities as well as instructions they received from the MOLISA.