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
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
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
employer penalty (for not having a written labor contract with
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.
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