- Introduction of a System of Split Use of Leave before and after Childbirth and Extension of the Applicable Period for Protective Leave with respect to a Miscarriage or Stillbirth
Under the Labor Standards Act ( “LSA”) amended as of February 1, 2012 and its Presidential Decree amended as of June 21, 2012, the following will be effective as of August 2, 2012: (a) a pregnant employee who has previously experienced a miscarriage, etc. may use a portion of their statutory leave at any time before childbirth; and (b) if a pregnant employee has a miscarriage or stillbirth, such employee may use protective leave with respect to miscarriage and stillbirth regardless of her pregnancy period.
Prior to the amendment, the LSA provided that an employer shall grant a pregnant employee a 90-day continuous protective leave before and after childbirth, but the number of leave days before childbirth should not exceed 44 days. However, the amended LSA provides that a pregnant employee may “divide” the protective leave “at any time” before childbirth up to a maximum of 44 days, which promotes the health of female employees and strengthens the protection of maternity in the event of the following: (a) where a pregnant employee has previously experienced a miscarriage or stillbirth; (b) where a pregnant employee is 40 years old or older at the time of asking for protective leave before and after childbirth; and (c) where a pregnant employee submits a medical report issued by the medical center which states that there are risks of miscarriage or stillbirth.
Prior to the amendment, with respect to miscarriage or stillbirth, the LSA provided that a pregnant employee is granted a protective leave only if the pregnancy period is 16 weeks or more. However, the amended LSA entitles a pregnant employee to a protective leave with respect to miscarriage or stillbirth, regardless of the pregnancy period; provided, however, that the number of days for protective leave shall be granted on a grading scale from 5 to 90 days according to the pregnancy period. However, protective leave shall not be granted under both the current and amended LSA in the event of a voluntary abortion.