China: Key points of the Shanxi Provincial Regulations on the Labor Protection of Female Employees

Last Updated: 2 November 2015
Article by Xu Xiaodan and Kaitian Luo

On 30 July 2015, the Standing Committee of the People's Congress of Shanxi province deliberated and passed the Shanxi Provincial Regulations on the Labor Protection of Female Employees (the "Shanxi Regulations"). The Shanxi Regulations took effect on 1 October 2015. As the first provincial local laws and regulations in the field of female employee protection after the enforcement of the Special Rules on the Labor Protection of Female Employees (the "Special Rules") that was promulgated by the State Council, the Shanxi Regulations elaborate the contents of Special Rules and also add some characteristic protections, which deserve attention from employers. We would like to make comments on the following key points of the Shanxi Regulations:

Elaborating related measures and treatments in the Special Rules

  1. Extending the range of the employment/service relationship protection to cover "marriage"

The Special Rules grants special protections on the labor/employment relationship for female employees who are in pregnancy, maternity leave and nursing period. That is to say, employer may not reduce a female employee's salary, or unilaterally terminate the labor/employment relationship with her due to her Pregnancy, maternity leave or nursing period.

On top of the aforementioned provisions, the Shanxi Regulations further regulates that, employer may not stipulate such provisions in the employment contract or service engagement contract as restricting female employees from getting married, bearing a child or enjoying any other legitimate rights and interests; nor might it reduce their salaries and employee benefits, limit their promotion and award, or unilaterally terminate the employment contract or service engagement contract with female employees due to their marriage, pregnancy, maternity leave or nursing period.

This provision not only explicitly stipulates that employer may not restrict the marriage right of female employees, but also sets a higher standard on the formulation and implementation of the employer's internal policies regarding employment contract management, employee benefits and performance evaluation.

  1. Extending the range of "no overtime or night-shift" protection to cover the female employees within 3-month pregnancy

The Special Rules only provides that, employer may not prolong working hours or arrange night-shift for female employees who are in or after 7-month pregnancy. However, the Shanxi Regulations includes female employees within 3-month pregnancy into the protection range as well, and it explicitly regulates that, the employer should arrange a break more than one hour for such employee every day, which enhances the special protection for female employees in early pregnancy.

  1. Prolonging maternity leave for female employees who miscarried

In the Special Rules, female employees who suffered a miscarriage within the first three months of pregnancy will be granted 15 days of maternity leave; and those who suffered a miscarriage in or after the fourth month of pregnancy will be granted 42 days of maternity leave.

The Shanxi Regulations further classifies the female employees who suffered a miscarriage into four circumstances: before the third month, between the third and fourth month, between the fourth month and seventh month of pregnancy and induction after the seventh month of pregnancy, in which circumstances female employees are granted with 15 days, 30 days, 42 days and 98 days of maternity leave, respectively. This significantly increases their maternity leave. However, it should be noted that, only if it is in line with relevant family planning policies of the state, those who induced labor after the seventh month of pregnancy would enjoy 98 days of maternity leave, otherwise only 42 days of maternity leave under the Special Rules.

Introducing new requirements for the employer

Besides the elaboration of measures and benefits of Special Rules as aforementioned, the Shanxi Regulations also introduces some new requirements for the employer.

  1. The protection of female employees should be put down in writing when concluding contract

Article 6 of the Shanxi Regulations states that, the employer should notify the female employees in writing of the occupational hazard and its consequences, occupational protection measures and employer's internal policies regarding the protection of female employees when entering into employment contract or service engagement contract with female employees. This provision, especially the requirement with respect to written form, enriches the obligation of notification borne by the employer.

  1. Special protections of female employees in menstrual period

Many local regulations have provided special protections of female employees during their menstrual period. However, in Shanxi Regulations, other than those common regulations about forbidding to assigning women during the menstrual period with jobs in high altitude, low temperature and cold water or manual labor in and above Class Three intensity, it specifies standards for these protections. For instance, the foresaid employees who stand for more than four consecutive hours at work should be granted a 20-minute rest, and those who have dysmenorrhea or menometrorrhagia with medical certificate should be granted 1 or 2 days' rest.

  1. Setting up adaptation system for post-maternity leave period

Article 15 of the Shanxi Regulations states that, female employees who return to work after their maternity leave should enjoy 1 to 2 week(s) adaptation time. In accordance with this provision, the employer is not entitled to determine whether a female employee is competent for her job on the basis of her working performance within 1 to 2 weeks after her return, which objectively restricts the employer's evaluation and unilateral termination right during such period.

  1. Other requirements

The Shanxi Regulations have also raised some other requirements on employers to provide more comprehensive protections for female employees, including:

  • The employer should take measures to ensure female employees' workplace safety during night-shift;
  • (The employer should) arrange at least one gynecological examination for female employees on an annual basis;
  • (The employer should) distribute a health subsidy that is no lower than RMB 30 per month to each female employee in service;
  • The nursing period for frail infants will be extended up to six months;
  • (Female) employees are entitled to apply for position adjustment in case of climacteric melancholia diagnosed by a hospital in Class Two or higher and the therapeutic effect is unobvious.

Strengthen the social credit supervision

As to the employer who violates its provisions, the Special Rules explicitly stipulates that it should assume multiple legal liabilities, such as administrative penalty, administrative order of business suspending or closing, indemnification for losses, criminal liability, etc..

On top of this, Article 3 of the Shanxi Regulation further brings the labor protection of female employees into social credit system. Article 24 of it provides that, where an employer violates the Shanxi Regulations, infringing legitimate rights and interests of female employees but refuses to rectify it upon the order by the human resources and social security authorities, it will be recorded in its social security honesty and credibility file and be released to the public. This provision strengthens the social credit supervision of female employees' special protections and calls for more regulatory efforts from the employer.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions