The laws and regulations governing employee benefits continue to
evolve in the People's Republic of China ("PRC").
(See two China Matters newsletters on Social Insurance
April 2011 and
October 2011.) On November 21, 2011, the Legislative Affairs
Office of the State Council of the People's Republic of China
published a notice to seek public feedback on its proposed
regulations, titled the Special Labor Protection Regulations
for Female Employees ("Draft Regulations").
The Draft Regulations are prepared based on the Labor Protection
Regulations for Female Employees, effective since September 1,
1988, and bring the PRC into line with the International Labor
Organization standards, which reflect time in increments of
"weeks" instead of "days". The Draft
Regulations include certain changes in current laws and
regulations, such as extended maternity leave and a more detailed
scope of work prohibited for female employees, to reflect the
society's development and public policy to provide greater
protections to female employees before and after childbirth.
According to the Draft Regulations, the maternity leave for a
female employee will be extended from 90 days to 14 weeks, two
weeks of which can be taken prior to delivery. For a complicated
delivery, employees will receive an additional two weeks'
maternity leave. Employees who give birth to multiple babies in one
delivery (i.e., twins) will be entitled to an additional
two weeks' maternity leave for each additional birth. Further,
employees who have an early termination of their pregnancy
(including induced abortion) within the first four months of
pregnancy will be entitled to a minimum of two weeks' leave.
Employees who have an early termination of pregnancy (including an
induced abortion) upon or after the fourth month of pregnancy will
be entitled to a minimum of six weeks' leave.
Below is a chart which reflects the minimum maternity leave
under different situations according to the Draft Regulations, the
current national law, and local regulations as implemented in
Beijing, Shanghai, and Guangzhou.
Where the local regulations provide more than the national
regulations, the local regulations will continue to apply. Where
the national regulations provide more than the local regulations,
the national regulations apply.
The Draft Regulations also provide the scope of work that is
prohibited for female employees in detail in an appendix to the
Employers should continue to monitor the developments in this
area in order to ensure that they adapt and provide the requisite
benefits, in the likely event that the Draft Regulations take
effect in their current form.
1 There will be an additional 30 days' leave for a
complicated delivery related to a Caesarean birth or a grade 3
perineal rupture, or an additional 15 days' leave for a
complicated delivery related to an aspirator delivery, forceps
delivery, or a breech delivery.
2 In Shanghai, an "early termination" of
pregnancy means a miscarriage or ectopic pregnancy.
3 In Beijing and Shanghai, a female employee's giving
birth to her first child at 24 years old or later is regarded as a
"late birth." In Guangzhou, a female employee's
bearing her first child at the age of 23 years old or later is
regarded as a late birth.
The content of this article does not constitute legal advice
and should not be relied on in that way. Specific advice should be
sought about your specific circumstances.
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