Earlier this year, in China’s Two Children Policy: What China Employers Should Know, I wrote how Beijing was in the process of amending its population and family regulations in response to the amended National Law on the same topic. For how China’s employment laws are both national and local, check out China Employment Law: Local and Not So Simple. Beijing has come out with its amendments and this post discusses their most salient points for Beijing employers.
Under its amended regulations, Beijing now requires a minimum of 128 days maternity leave (this is 30 days longer than the statutory minimum before the amendment). The special leave for a spouse whose wife gives birth is now 15 days (8 days longer than before). This is the same as in Guangdong Province but 5 days longer than in Shanghai. The new regulations delete the special leave provision for late childbirth.
Beijing’s new maternity and family leave regulations also provide that upon the female worker’s request and the employer’s consent, the maternity leave can be extended for another one to three months. This makes it possible for a female employee in Beijing to get up to 7.25months of paid leave for childbirth, regardless of whether it is her first or second child. Under a strict interpretation of the Beijing maternity leave amendments, however, if the employer does not give its consent, the female worker cannot unilaterally make her leave longer than 128 days, or about 4.25 months.
However, as is typical of so many China employment laws and regulations, the rules on extending maternity leave are less than clear. In particular, it is not clear whether Beijing employers are free to say “no” to all employees seeking to extend their maternity leave or whether they must grant maternity leave extensions to employees with “good reasons” for not being able to return to work after the standard 128-day maternity leave. Given Beijing’s longstanding pro-employee approach our China employment lawyers are instructing our Beijing clients to have us review all the relevant facts relating to the employee’s request for extended maternity leave and, most importantly, check with the local labor authorities before saying no. And do not forget that just like everywhere else in China, Beijing employers are generally prohibited from terminating an employee during his or her paternity/maternity or to reduce that employee’s wages in any way.
We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.