In order to solve various social problems caused by China’s large population, the “One-Child Policy” (“Policy”) was established by the central government in the 1970s as a fundamental policy. According to the Policy, unless otherwise provided by law or regulation, each couple may only have one child.
For the past four decades, the Policy has been enforced by local authorities, and Chinese employers have benefited because female employees have generally taken only one period of maternity leave. In November 2013, however, the central government decided that if either parent is the only child of his/her parents, the wife (“Qualified Female Employee”) will be allowed to give birth to two children.
So far, numerous provinces/municipalities (including Beijing and Shanghai) have made relevant regulations to implement the decision, and it’s very likely that others such as Guangdong will follow suit in the near future. As a result, the following employment law compliance issues are noteworthy:
- Legal Entitlements
A direct effect of the Policy change is that female employees may now give birth to more than one child.
According to Chinese law, a female employee has the following entitlements when she gives birth to her first child:
- Paid Maternity Leave - Normally, a female employee in China has 98 days of maternity leave (including 15 days of antenatal leave and 83 days of postpartum leave). Additional leave would be given for special circumstances such as dystocia or double/multiple births. Further, if the female employee meets the requirements of late birth, additional leave may be awarded to her as a compliance benefit according to local regulations.
- Employment Protection - The employer may not terminate the employment of a female employee during her pregnancy, confinement or nursing period (one year after confinement) according to Article 40 (e.g., incompetent for the job and remaining incompetent after training or adjustment of position) and Article 41 (e.g., statutory redundancy) of the Labor Contract Law of the PRC. If employment ends during the pregnancy, confinement or nursing period of a female employee, the employment contract shall be extended until the end of her nursing period.
- Nursing Breaks - During the nursing period, the female employee is given a daily one hour break to nurse her baby. In the case of double or multiple births, the female employee is given an additional one hour break daily for each additional baby.After the implementation of the Policy change, if a Qualified Female Employee gives birth to a second child, she will enjoy almost all of the statutory entitlements mentioned above except for the compliance benefit for late birth.Employers in China may not discriminate against female employees or infringe upon their statutory entitlements. If they do, the employer will be liable for any loss caused to the employee.
- Termination Rights for Policy Violation
When the new Policy is implemented, Qualified Female Employees will legally be able to give birth to no more than two children. Since the restriction in the Policy is statutory, Chinese employers may prohibit Policy violations in relevant employment documents such as employment contracts or company rules and regulations. If a female employee violates the Policy, her employment may be terminated in accordance with relevant employment documents.
- Local Variation
Local authorities may decide whether to implement the Policy change, as well as how to implement it. Employers in China must be aware that local variations exist on this issue and that different obligations may apply for purposes of compliance.