Now that China has amended its Law on Population and Family Planning, it is a good time to review how China's employment laws treat pregnant and nursing employees. As I wrote previously, Chinese labor law generally takes a pro-employee position regarding such employees.
The first thing you as an employer in China must keep in mind when dealing with a pregnant or nursing employee is that you are prohibited from unilaterally such an employee without cause. This means you cannot terminate the employee by giving thirty days written notice or by paying an additional one month of the employee's salary even if you could ordinarily have done so under the permissible grounds for unilateral termination, nor can you terminate the labor contract of the employee by initiating a mass layoff.
This, however, does not mean you are absolutely prohibited from terminating a pregnant or nursing employee. Termination is still possible under one of the following circumstances:
- The employee does not satisfy the conditions for employment during the probation period.
- The employee materially breaches the employer's rules and regulations.
- The employee commits a serious dereliction of duty or practices graft, causing substantial damage to the employer.
- The employee has established an employment relationship with another employer that materially impacts completion of her tasks with her existing employer, or she refuses to terminate her employment relationship with the other employer after being required to do so by her existing employer.
- The employee uses deception or coercion, or takes advantage of the employer's difficulties, to cause the employer to conclude the labor contract, or to make an amendment thereto, that is contrary to the employer's true intent.
- The employee has criminal liability imposed against her.
In addition to the above, the employer may also terminate the labor contract by reaching a settlement agreement with the employee. It could get messy if the employee claimed she did not know about her pregnancy until after her labor contract was terminated. The employee might go back to the employer seeking to revoke her earlier decision because it was made due to a "serious misunderstanding." Unfortunately, for China employers, the court decisions on this issue are contradictory, with some holding against employers (and reinstating the employee's positions) and some holding in favor of them.
Moreover, Chinese employment law requires that when the term of a labor contract with an employee expires while the employee is pregnant, the contract must be extended until the employee is done nursing. Consider this question: what if a pregnant or nursing employees refuses to enter into a new written contract after her existing one has expired? Can the employer end its relationship with that employee? The answer is somewhat unclear. Some Chinese courts have held that an employer that acted in good faith and the employee refused to sign the contract without justification, the employer has the right to end the labor relationship. But a second view insists on strictly applying the Labor Contract Law and requiring the labor contract be extended even if the pregnant or nursing employee refuses to execute a written labor contract with the employer. The employer should proceed with caution, because letting an employee continue working after the initial labor contract expires may lead to employer penalty (for not having a written labor contract with the employee).
Bottom line: If you are an employer in China, start studying China's laws on pregnant and nursing employees so that you know them before you need them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.