The laws and regulations governing employee benefits continue to evolve in the People's Republic of China ("PRC"). (See two China Matters newsletters on Social Insurance regulations – April 2011 and October 2011.) On November 21, 2011, the Legislative Affairs Office of the State Council of the People's Republic of China published a notice to seek public feedback on its proposed regulations, titled the Special Labor Protection Regulations for Female Employees ("Draft Regulations").
The Draft Regulations are prepared based on the Labor Protection Regulations for Female Employees, effective since September 1, 1988, and bring the PRC into line with the International Labor Organization standards, which reflect time in increments of "weeks" instead of "days". The Draft Regulations include certain changes in current laws and regulations, such as extended maternity leave and a more detailed scope of work prohibited for female employees, to reflect the society's development and public policy to provide greater protections to female employees before and after childbirth.
According to the Draft Regulations, the maternity leave for a female employee will be extended from 90 days to 14 weeks, two weeks of which can be taken prior to delivery. For a complicated delivery, employees will receive an additional two weeks' maternity leave. Employees who give birth to multiple babies in one delivery (i.e., twins) will be entitled to an additional two weeks' maternity leave for each additional birth. Further, employees who have an early termination of their pregnancy (including induced abortion) within the first four months of pregnancy will be entitled to a minimum of two weeks' leave. Employees who have an early termination of pregnancy (including an induced abortion) upon or after the fourth month of pregnancy will be entitled to a minimum of six weeks' leave.
Below is a chart which reflects the minimum maternity leave under different situations according to the Draft Regulations, the current national law, and local regulations as implemented in Beijing, Shanghai, and Guangzhou.
Where the local regulations provide more than the national regulations, the local regulations will continue to apply. Where the national regulations provide more than the local regulations, the national regulations apply.
The Draft Regulations also provide the scope of work that is prohibited for female employees in detail in an appendix to the Draft Regulations.
Employers should continue to monitor the developments in this area in order to ensure that they adapt and provide the requisite benefits, in the likely event that the Draft Regulations take effect in their current form.
Footnotes
1 There will be an additional 30 days' leave for a complicated delivery related to a Caesarean birth or a grade 3 perineal rupture, or an additional 15 days' leave for a complicated delivery related to an aspirator delivery, forceps delivery, or a breech delivery.
2 In Shanghai, an "early termination" of pregnancy means a miscarriage or ectopic pregnancy.
3 In Beijing and Shanghai, a female employee's giving birth to her first child at 24 years old or later is regarded as a "late birth." In Guangzhou, a female employee's bearing her first child at the age of 23 years old or later is regarded as a late birth.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.