In China maternity leavelegislation recently changed due to amendments to family planning laws. What doyou do when your employee is pregnant and what obligations do you have, as an employer?This article will familiarize you with the newest regulations, in order to keepup, and comply with them.
Chinese regulations concerning pregnant employees
Firstly it is important to knowif a contract with a pregnant employee can be terminated. According to relevantlaws, employers are forbidden from unilaterally terminating the agreement withthe employee. The pregnant or nursing staff member can be fired if the employeeand employer can reach a settlement agreement. Unilaterally firing a pregnantemployee is only possible only under very specific circumstances. Most of thesecircumstances include the employee breaching the contract or committing someform of crime.
In case an employment contract ends whilethe employee is pregnant, the labour contract must be extended until theemployee is done nursing. It is unclear if the contract can be terminated ifthe employee refuses to extend it. In case employer and employee cannot reachan agreement the case would need to be taken to court. The outcomes ofsubsequent court cases have been rather controversial.
How much parental leave shouldmy employee receive?
The pregnant employee will stay undercontract during her pregnancy and nursing period. In China maternity leave ispaid, the employer is required by law to continue paying the employee.
The main law concerning this parental leavewas amended last year. This law is the Population and Family Planning law. Itsamendment made headlines worldwide because the new version of the law made anend to the One-Child Policy. However, the amendment not only changed the numberof children parents can have, but also how much time they can spend with them.Benefits for late marriage and late childbearing were removed, and insteadreplaced with extra leave for all couples that bear children in compliance withthe laws, no matter the age of the parents, or if it is their first or secondchild.
The new law determined that localgovernments now regulate the extent of parental leave. In every province inChina maternity leave was extended by 30 days so that mothers everywhere arenow entitled to at least 128 days. The same goes for paternal leave withprovisions for fathers ranging between 7 days and one month.
Hereis a list of several regions and their regulations concerning parental leave.
Shanghai: Maternal leave is 128 days.Paternal leave has increased from 3 to 10 days.
Sichuan: Maternity leave has increased from98 days to 158 days. Paternity leave went from 15 days to 20 days.
Chongqing: Chongqing’s government increasedmaternity leave to 128 days. Paternal leave was increased to 15 days.
Hubei: Maternity leave in Hubei increasedto 128 days. Fathers are now entitled to 15 days of leave.
Shaanxi: The Shaanxi government increasedmaternity leave to 158 days. Paternity leave is now 15 days, or 20 days iffather and mother do not reside in the same place.
In conclusion, it is important to know thenational and local legislations concerning pregnant employees and parentalleave. Pregnant employees can generally not be fired during their pregnancy,and their contract must be extended if it ends during this period. In Chinamaternity leave is 128 days or more, fathers are also entitled to parentalleave. The employer must pay the employee during their period of leave.
For employers it is important to review allthe relevant laws and keep up to date with them. This way the employer can bewell prepared. Some issues are not clearly specified or outlined in China’slaws. Therefore precautions must be taken, as interpretations and applicationsof the law can differ.
Elite Stage is a platform that provides One-stop business Solution for start-ups and foreign enterprises, founded by Venture Capital and Elite Stage Consulting Company, individual Lawyer Partners and Deloitte Auditors. For over 10 years, Elite Stage successfully assisted more than 5000 companies from all over the world with their China market entry solutions .