Editor: Weining Hu
The State Council released and implemented the Provisions on Female Labor Protection under Special Circumstances (State Council Decree No. 619) in 2012, which extended maternity leave for female employees in China to 14 weeks (98 days) from the previous 90 days－just meeting the minimum maternity leave stipulated by the International Labor Organization (ILO).
However, maternity leave in China can vary widely by location, especially in terms of ‘late maternity leave’ as determined by the local government. It can also be complex for an employer to calculate how much maternity leave and allowance female employees are entitled to.
Starting from the 12th week of pregnancy, a pregnant employee will need to go for an increasing number of prenatal check-ups, for which she is entitled to paid leave. These check-ups will be logged in the pregnancy handbook provided by the local Community Health Service Center.
Length of paid maternity leave
A Chinese female employee may take a 98-day paid maternity leave beginning at her discretion 15 days prior to childbirth. Leave may be extended by 15 days under special circumstances, such as dystocia. If the employee gives birth to more than one child at a time, an additional 15-day maternity leave shall be given for each additional infant.
In addition, a Chinese female employee who gives birth to her first child at age 24 or older is regarded as a case of ‘late childbirth,’ and is therefore entitled to an additional ‘late maternity leave’ of roughly 30 days (this may vary widely by location, e.g. 45 days in Dalian).
After the abolition of the one-child policy in late 2015, many provinces changed the wording of ‘late maternity leave’ to ‘maternity rewards leave’ (生育奖励假). Despite the change of title, leave days remained the same in most provinces. However, as leave days and related policies vary by province, it is recommended to look up specific regulations with the relevant local authorities.
A foreign employee may also take a 98-day paid maternity leave, but is not eligible for late maternity leave. It should be noted that the 98-day leave includes working days, weekends, and national holidays, while the late maternity leave includes only working days and weekends.
Abortion and miscarriage
Furthermore, no less than 15 days of maternity leave shall be offered in cases of abortion after a pregnancy shorter than four months, and no less than six weeks of maternity leave in cases of miscarriage/abortion after a pregnancy longer than four months.
During maternity leave, a female employee shall receive a maternity allowance in lieu of salary. Generally, a Chinese female employee (assuming that the employee has participated in maternity insurance) is paid by the Social Security Bureau where the woman is registered. In determining the amount of maternity allowance, the Social Security Bureau will look at the employee’s monthly salary and the average monthly salary of all employees over the last 12 months.
The Bureau will pay whichever amount is higher, but no more than three times the average salary in the Bureau’s jurisdiction. In certain parts of China, such as Beijing and Shanghai, any amount above three times the local average must be paid by the employer. For example, the average monthly salary in Shanghai in 2015 was RMB 5,939, making the benchmark maternity allowance in Shanghai RMB 5,939 × 3 = RMB 17,817.
Comparing three different scenarios:
The maternity allowance shall also apply to foreign employees who have contributed to the maternity insurance scheme. Foreign and Chinese employees not participating in maternity insurance shall receive their full salary paid by the company.
A female employee shall also be granted at least one hour each day during work hours for breastfeeding during a one-year ‘breastfeeding period.’ In practice, companies tend to ask employees to work a full eight-hour day, and allow them to accumulate the extra hour toward vacation time. Most female employees prefer this approach as well.
The amount of time that a male employee can take as paternity leave largely depends on where the individual is registered for social security. In general, China’s statutory paternity leave does not exceed two weeks. For example, in Shanghai, according to the newest Shanghai Population and Family Planning Regulations promulgated in 2016, a male employee is entitled to a ten-day paternity leave in the case of late childbirth, seven days more than the old regulation. In Shenzhen, a male employee can enjoy a 15-day paternity leave if his wife is 23 or older.
Terminating a Pregnant Employee
In China, it is illegal to terminate a pregnant employee during her pregnancy, maternity leave, or breastfeeding period (which lasts until the infant is a year old). Further, if an employee gets pregnant during the term of her fixed-term contract, and the contract ends during the pregnancy, the contract shall be automatically extended (through a renewed end date or a second contract) until the end of the breast-feeding period.
About the author: This article first appeared in China Briefing by Dezan Shira & Associates, a specialist foreign direct investment practice, providing corporate establishment, business advisory, tax advisory, and compliance, accounting, payroll, due diligence, and financial review services to multinationals investing in China, Hong Kong, India, Vietnam, Singapore and the rest of ASEAN. For further information, please email [email protected] or visit www.dezshira.com.