At the end of 2014 the State Council issued the list of official holidays for 2015, rekindling concern about the holidays and the pay that employees are entitled to during holidays. Questions remain among both employers and employees concerning the length of the holidays and the required pay during the holidays. This article discusses holidays in accordance with the Labor Law of the People's Republic of China (“Labor Law”) and several relevant regulations.
I. General Holidays
According to the Labor Law and the relevant regulations all laborers are entitled to the following holidays:
A. Holidays Available To All Citizens
In accordance with the Measures for Taking Holidays for National Annual Leave and Festivals (Revised in 2013) promulgated by the State Council, all employees are entitled to the following 11 days of leave:
Holiday # Days Dates
New Year 1 January 1
Spring Festival 3 Lunar New Year and the first two days of the lunar month. (†)
Tomb Sweeping Day 1 Lunar Tomb Sweeping Day (†)
Labor Day 1 May 1
Dragon Boat Festival 1 Lunar Boat Festival (†)
Mid-Autumn Festival 1 Lunar Mid-Autumn Festival (†)
National Day 3 October 1 – 3
(†) These holidays are based on the lunar calendar and, as such, their date changes each year.
During these holidays, employing units should pay the employees the regular wages. If theyshall be paid triple but they are not entitled to make use of the days off later.
B. Marriage Leave
Recent laws do not grant any marriage leave; however the State Administration of Labor and the Ministry of Finance (effective on February 20, 1980) stipulates that employees are entitled to one to three days (generally three days) of marriage leave when they get married.
Article 25 of the Law of the People's Republic of China on Population and Family Planning states that civilians who have a “late marriage” shall receive extended marriage leave and receive other benefits. A late marriage is a marriage at least three years after the legal age to get married (22 for men and 20 for women). Local regulations stipulate the length of the extended leave and the benefits that are enjoyed; in Beijing, employees who have a late marriage receive an extra 7 days of marriage leave. The employing units shall pay wages to laborers during their marriage leave.
It is worth noting that: (a) if part of the marriage leave falls on weekends or statutory holidays, there shall be no compensation for this time off; (b) marriage leave must be taken continuously and can only be separated with the employing units’ permission; and (c) those who get remarried shall receive only the 3-day statutory leave.
C. Funeral Leave
The Labor Law stipulates that employees are entitled to one to three days (generally three days), when any of their close relatives (parents, spouse or children) dies. The employing units shall pay wages to laborers during their funeral leave.
D. Sick Leave
Employees suffering from an illness are entitled to 3 to 24 months leave for medical treatment based on how long the employee has been employed with any employer (“actual working period”) and how long the employee has worked with his/her current employer (“working period with current employer.”)
If the actual working period is less than ten years:
Working Period with Current Employer Length of Medical Leave
Less than 5 years 3 months
More than 5 years 6 months
If the actual working more is more than ten years:
Working Period with Current Employer Length of Medical Leave
Less than 5 years 6 months
5 to 10 years 9 months
10 to 15 years 12 months
15 to 20 years 18 months
More than 20 years 24 months
Employing unit shall pay sick pay or medical expenses; this amount may be lower than thelocal minimum wage but may not be lower than 80% of the minimum wage in the city in whichthey are located.
E. Paid Annual Leave
Employees who have worked continuously for 12 months or more are entitled to paidannual leave. The amount of paid annual leave is:
Working Period with Current Employer Paid Annual Leave
One year to 10 years 5 days
10 years to 20 years 10 days
20 or more years 20 days
The stipulated amount of paid annual leave is a lower limit; however employers are free togrant more paid annual leave.
In general, employing units may arrange for each employee’s paid annual leave based onboth their needs and the desires of the employee. The paid annual leave can be takencontinuously or can be segmented (e.g. part in the first half of the year and part in the secondhalf of the year). Paid annual leave can be rolled forward to later years only if there is a specificneed for it and an employee can never use their paid annual leave from future years.
If an employer cannot arrange annual leave for an employee, it shall obtain consent fromthe employee and pay 300% of the daily wages for those days that should have been given as paid annual leave. If the employer refuses to pay this amount, it shall be ordered by the laboradministrative enforcement authorities to correct the situation, pay the amount and extracompensation. However, if the employer does arrange for paid annual leave for the employeeand the employee makes a written request to not take the leave, the employer need only pay theemployee his/her normal wage. In addition, paid annual leave does not include statutory holidays,festivals and weekends.
F. Workers’ Compensation
Employees who suffer work-related injuries or diseases are entitled to a workers’compensation (paid time off from work) for a period which normally shall not exceed 12 months.During the workers’ compensation period, the employee’s original wage and welfare benefits shall remain unchanged and are payable monthly by his/her employer. If the injury is severe or the circumstances involve are exceptional, the period may, subject to confirmation by the work capability assessment committee of a city divided into districts, be extended as appropriate. However, such extension shall not exceed 12 months. If the employee still needs medical treatment after the end of the workers’ compensation period, the employee shall continue to enjoy only the work-related injury medical benefits. If the injury is such that it will have a long term effect on the employee’s ability to work then a work capability assessment shall be conducted and he/she shall be assigned a disability grade. If this happens, then the original benefits are terminated and the employee is instead given work-related injury insurance, the amount of which is based on his/her disability grade.
G. Home leave
Regular employees who have employed by state organs, civil bodies, enterprises wholly owned by the people and public institutions who do not live with and cannot easily see their spouses or parents on public holidays are entitled to home leave. The wages during the leave is based on their situation. Employees are entitled home leave as follows:
Married employees are given 30 days annual home leave to visit their spouses.
Unmarried employees are given 20 days annual home leave to visit their parents; based on the needs of the employer or the request of the employee, this can be changed to 45 days home leave every two years.
Married employees are given 20 days home leave every four years to visit their parents.
II. Holidays Designed for Female Employees
Female employees are entitled to different kinds of leave when pregnant or in early childcare.
A. Leave for Prenatal Examinations
In accordance with the Special Provisions on Labor Protection of Female Employees, time spent on prenatal examinations carried out during working hours shall be counted as working hours, not absenteeism, sick leave or casual leave. Employing units shall ensure that pregnant employees have sufficient time for prenatal examinations and pay their wages for the time they spend for prenatal examinations.
B. Pre-Delivery Leave
Pregnant employees shall be entitled to have 15 days leave before delivery. The employing units shall pay wages at the same rate as the employee was earning prior to the pre-delivery leave. In other respects, pre-delivery leave is the same maternity leave.
C. Maternity Leave
The Special Provisions on Labor Protection of Female Employees stipulate the length of maternity leave and other protections based on the stage of pregnancy. Employers shall not arrange for female employees who are more than seven months pregnant to work extended hours or night duty. In addition, they shall grant these employees periodic breaks throughout the working day. Female employees shall be entitled to 98 days of maternity leave after delivery plus 15 extra days if the labor was difficult. In the case of multiple births, female employees shall be entitled to an additional 15 days maternity leave for each additional infant. Female employees who suffer a miscarriage within the first 4 months of pregnancy are entitled to 15 days maternity leave, and those who suffer a miscarriage after the first 4 months of pregnancy are entitled to 42 days maternity leave.
In addition, employing units also need to pay attention to local regulations. For example, Article 20 of Beijing Municipality Population and Family Planning provides that female employees who have a late childbirth are entitled to an additional 30 days leave. If she is married and the marriage is legally registered, these additional days of leave may also be taken by the husband. During the leave period, the employer of the mother shall not reduce her wage or terminate her labor contract. If the mother or husband chooses not to take the additional days of leave, the mother shall be given an additional month’s pay.
In summary, female employees are given 98 days of maternity leave after delivery and those in Beijing who have a late childbirth are entitled to an additional 30 days. During this period, the employer must continue to pay the mother’s salary.
For those female employees who have maternity insurance, the maternity benefits are equal to the average salary of the employee over the previous year and are paid by the insurance; for those without maternity insurance the benefits are based on their salary just before the maternity leave and are paid by the employer. Medical expenses that are covered by female employees insurance are paid by the insurance; all other medical expenses (including all medical expenses for those female employees without insurance) are paid by the employer.
D. Nursing Leave
Employers shall not arrange for extended work hours or night duty for female employees who are nursing infants less than a year old. In addition, employers shall arrange for one hour of breast-feeding time for these employees; in the case of multiple births an additional hour shall be arranged for each additional infant.
E. Leave for Birth Control Surgery
Local regulations stipulate the amount of leave granted for birth control surgery which ranges from 2 to 42 days. For example, in Beijing, employees who have birth control surgery are entitled to paid leave upon presentation of a medical certificate and in Suzhou employees who have a certificate from a medical or family planning technical service institution are entitled to have 2 to 42 days paid leave depending on the type of the surgery.
F. Paternity leave
Paternity leave refers to the right of the husband of a couple who have legally registered their marriage to be entitled to a period of time to take care of his wife during the maternity leave of the wife. As discussed above, in Beijing husbands are entitled to 30 days paternity leave when their wife has a late pregnancy. Other local regulations generally grant 7 to 15 days of paternity leave. The employees and employers must agree on the salary to be paid during paternity leave.
According the Labor Law and relevant regulations, employers shall take the initiative to arrange most of the aforementioned holidays and leave. In the event that the employers fail to make such arrangements, the employees can usually claim their holidays and salaries and these claims will generally be supported. Employers are reminded to familiarized themselves with and obey the laws and regulations on holidays and salaries for employees so as to avoid disputes and punishments after employees leave the company