On 30 July 2015, the Standing Committee of the People's Congress of Shanxi province deliberated and passed the Shanxi Provincial Regulations on the Labor Protection of Female Employees (the “Shanxi Regulations”). The Shanxi Regulations took effect on 1 October 2015. As the first provincial local laws and regulations in the field of female employee’s protection after the enforcement of the Special Rules on the Labor Protection of Female Employees (the “Special Rules”) that was promulgated by the State Council, the Shanxi Regulations elaborates the contents of Special Rules and newly adds some characteristic protections, which deserves attention from employers. We would like to make comments on the following key points of the Shanxi Regulations:
Elaborating related measures and treatments in the Special Rules
1. Extending the range of the employment/service relationship protection to cover “marriage”
The Special Rules grants special protections on the labor/employment relationship for female employees who are in pregnancy, maternity leave and nursing period. That is to say, employer may not reduce a female employee’s salary, or unilaterally terminate the labor/employment relationship with her due to her Pregnancy, maternity leave or nursing period.
On top of the aforementioned provisions, the Shanxi Regulations further regulates that, employer may not stipulate such provisions in the employment contract or service engagement contract as restricting female employees from getting married, bearing a child or enjoying any other legitimate rights and interests; nor might it reduce their salaries and employee benefits, limit their promotion and award, or unilaterally terminate the employment contract or service engagement contract with female employees due to their marriage, pregnancy, maternity leave or nursing period.
This provision not only explicitly stipulates that employer may not restrict the marriage right of female employees, but also sets a higher standard on the formulation and implementation of the employer’s internal policies regarding employment contract management, employee benefits and performance evaluation.
2. Extending the range of “no overtime or night-shift” protection to cover the female employees within 3-month pregnancy
The Special Rules only provides that, employer may not prolong working hours or arrange night-shift for female employees who are in or after 7-month pregnancy. However, the Shanxi Regulations includes female employees within 3-month pregnancy into the protection range as well, and it explicitly regulates that, the employer should arrange a break more than one hour for such employee every day, which enhances the special protection for female employees in early pregnancy.
3. Prolonging maternity leave for female employees who miscarried
In the Special Rules, female employees who suffered a miscarriage within the first three months of pregnancy will be granted 15 days of maternity leave; and those who suffered a miscarriage in or after the fourth month of pregnancy will be granted 42 days of maternity leave.
The Shanxi Regulations further classifies the female employees who suffered a miscarriage into four circumstances: before the third month, between the third and fourth month, between the fourth month and seventh month of pregnancy and induction after the seventh month of pregnancy, in which circumstances female employees are granted with 15 days, 30 days, 42 days and 98 days of maternity leave, respectively. This significantly increases their maternity leave. However, it should be noted that, only if it is in line with relevant family planning policies of the state, those who induced labor after the seventh month of pregnancy would enjoy 98 days of maternity leave, otherwise only 42 days of maternity leave under the Special Rules.
Introducing new requirements for the employer
Besides the elaboration of measures and benefits of Special Rules as aforementioned, the Shanxi Regulations also introduces some new requirements for the employer.
1. The protection of female employees should be put down in writing when concluding contract
Article 6 of the Shanxi Regulations states that, the employer should notify the female employees in writing of the occupational hazard and its consequences, occupational protection measures and employer’s internal policies regarding the protection of female employees when entering into employment contract or service engagement contract with female employees. This provision, especially the requirement with respect to written form, enriches the obligation of notification borne by the employer.
2. Special protections of female employees in menstrual period
Many local regulations have provided special protections of female employees during their menstrual period. However, in Shanxi Regulations, other than those common regulations about forbidding to assigning women during the menstrual period with jobs in high altitude, low temperature and cold water or manual labor in and above Class Three intensity, it specifies standards for these protections. For instance, the foresaid employees who stand for more than four consecutive hours at work should be granted a 20-minute rest, and those who have dysmenorrhea or menometrorrhagia with medical certificate should be granted 1 or 2 days’ rest.
3. Setting up adaptation system for post-maternity leave period
Article 15 of the Shanxi Regulations states that, female employees who return to work after their maternity leave should enjoy 1 to 2 week(s) adaptation time. In accordance with this provision, the employer is not entitled to determine whether a female employee is competent for her job on the basis of her working performance within 1 to 2 weeks after her return, which objectively restricts the employer’s evaluation and unilateral termination right during such period.
4. Other requirements
The Shanxi Regulations have also raised some other requirements on employers to provide more comprehensive protections for female employees, including:
- The employer should take measures to ensure female employees’ workplace safety during night-shift;
- (The employer should) arrange at least one gynecological examination for female employees on an annual basis;
- (The employer should) distribute a health subsidy that is no lower than RMB 30 per month to each female employee in service;
- The nursing period for frail infants will be extended up to six months;
- (Female) employees are entitled to apply for position adjustment in case of climacteric melancholia diagnosed by a hospital in Class Two or higher and the therapeutic effect is unobvious.
Strengthen the social credit supervision
As to the employer who violates its provisions, the Special Rules explicitly stipulates that it should assume multiple legal liabilities, such as administrative penalty, administrative order of business suspending or closing, indemnification for losses, criminal liability, etc..
On top of this, Article 3 of the Shanxi Regulation further brings the labor protection of female employees into social credit system. Article 24 of it provides that, where an employer violates the Shanxi Regulations, infringing legitimate rights and interests of female employees but refuses to rectify it upon the order by the human resources and social security authorities, it will be recorded in its social security honesty and credibility file and be released to the public. This provision strengthens the social credit supervision of female employees’ special protections and calls for more regulatory efforts from the employer.