On 27 December 2019, the Employment (Amendment) Bill 2019 ("Bill") was published in the Gazette. If enacted, the Bill will make certain amendments to the Employment Ordinance ("EO") which were first announced as part of the Chief Executive's policy address in 2018 (see our previous bulletin). Although not expected to be implemented until late 2021, the move will be welcomed by many employers who increasingly are adopting family friendly policies such as more beneficial leave entitlements or shared parental leave to attract and retain talent.
Key amendments to the EO
The Bill proposes three key amendments to the EO:
- Extending statutory maternity leave from 10 to 14 weeks: Currently, female employees under a continuous contract are entitled to take 10 weeks' maternity leave. If they have been employed under a continuous contract for not less than 40 weeks immediately before the commencement of their maternity leave, they are also entitled to maternity leave pay at the rate of four-fifths of their average daily wages for the relevant 10 weeks. The Bill increases the statutory maternity leave to 14 weeks. The additional four weeks' maternity leave pay will continue to be calculated at four-fifths of the employee's average daily wages. However, the amount of additional maternity leave payable is subject to a total cap for the additional four weeks of HKD36,822 per employee (impacting employees who earn more than HK$50,000 a month). The current proposal that the additional four weeks' statutory maternity leave will be reimbursed by the Government to employers by way of an administrative scheme.
- Amending the definition of 'miscarriage': The Bill amends the definition of 'miscarriage' from 28 weeks to 24 weeks of pregnancy. The significance of this that it may entitle an employee whose child is not capable of surviving after being before at or after 24 weeks of pregnancy to maternity leave, provided certain conditions are met. Currently, the EO only entitles employees that have a cessation of pregnancy to prior to 28 weeks' sick leave.
- Entitling employees to sickness allowance that are able to produce a certificate of attendance in respect of a pregnancy-related medical examination: This amendment allows an employee who is absent from work while attending a pregnancy-related medical examination to be entitled to sickness leave if she is able to produce a certificate of attendance (CoA). The Government has recognised that women are sometimes issued with a CoA rather than a medical certificate after attending such examinations. These amendments have been incorporated to make it clear that both a CoA and a medical certificate entitle pregnant employees to sickness allowance.
It is expected that the Bill will be introduced into the Legislative Council on 8 January 2020, with the Secretary for Labour and Welfare stating that the changes are hoped to take effect by late 2021.
The changes seek to bring Hong Kong in line with the International Labour Organisation standards, which provide for a minimum 14 week maternity benefit. Many organisations may already have in place global or regional policies which provide for more generous parental leave policies. Even so, once the Bill has passed through the Legislative Council, employers will need to ensure that they:
- amend their employee handbooks and relevant policies to reflect the new position and ensure that the changes align with any existing policies even where these provide a more generous entitlement; and
- ensure HR and managers are adequately informed and trained about the amendments so they can better discuss and prepare for female staff returning to work.