China has maintained a one-child policy for more than three decades. Although intended for population control, Chinese employers have benefitted from only needing to provide maternity-related benefits to female employees once.
Overview of the Change
The decreased birth rate and the increasingly aged population in China has, however, created other challenges. In response, China’s central government issued a decision in November 2013 which expands the number of married couples permitted to have two children. Specifically, if either the husband or wife is an only child in his/her family another child will be permitted (“Policy”). Previously both the husband and the wife need to be an only child. The Policy will therefore widen the pool of employees who are able to have more than one child and therefore increase the obligation on employers to provide materinty-related benefits.
Provinces and Municipalities
Following the central government’s decision, a number of provinces and municipalities have implemented the Policy, including Beijing, Shanghai, Tianjin, Zhejiang Province, Jiangxi Province, Anhui Province, Guangxi Province, Hubei Province, Fujian Province and Sichuan Province. Reportedly, the implementation of the Policy is also under way in a number of other provinces, including Guangdong Province.
Given the implementation of the Policy, it is expected that more female employees will have two children. With this in mind, employers should review their employee rules in relation to maternity leave and related benefits to ensure that they provide the appropriate benefits.
A female employee who gives birth to a child is entitled to the following protection under Chinese law:
Female employees are entitled to 98 days of maternity leave, including pre-natal leave during the 15 days immediately prior to the expected date of birth, and post-natal leave of up to 83 days immediately following the birth. Additional leave is also available for females giving birth at or over the age of 24 (“Late birth leave”).
An employer cannot terminate the employment of a female employee during her pregnancy, or during her nursing period (which is one year from the baby’s birth). If the term of employment ends during the pregnancy or nursing period of a female employee, then the employment contract must be extended until the end of her nursing period.
No Salary Reduction
An employer cannot reduce a female employee’s salary due to her pregnancy or nursing period commitments.
No Overtime Work
A female employee who is seven months pregnant or more, or who is in the nursing period, cannot be asked by the employer to work overtime or work a night shift.
Prenatal Check Ups
The prenatal checkup time spent by a pregnant female employee during her working hours must be counted as her working hours. 08/2631090_1 2
A female employee who nurses her baby within the statutory nursing period is entitled to one hour during her working time for nursing.
A qualified female employee who gives birth to her second child under the Policy is entitled to each of the above protections for the second child, except for the Late Birth Leave.
Employers should make sure that their policies cater for female employees who may have a second child. An important first step is to review employee handbooks to ensure compliance with the Policy and the extension of employment protections to qualified female employees having a second child.
It is likely that local governments will issue detailed implementing rules in relation to employment protection provided to female employees giving birth to a second child.