Legislative update: Enhanced maternity leave protection

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Introduction

Working mothers in Hong Kong will benefit from improvements on statutory maternity benefits as a result of the newly gazetted Employment (Amendment) Ordinance 2020 (“EAO”) on 17 July 2020, which is expected to take effect towards the end of 2020.

The key amendments introduced by the EAO are as follows:


(i)   Extension of maternity leave by 4 weeks

The EAO increases maternity leave under the Employment Ordinance (Cap. 57) by 4 weeks, from 10 to 14 weeks. The additional 4 weeks should be taken by the entitled employee continuously after her 10 weeks of maternity leave.

Correspondingly, the period within which eligible male employees are entitled to take statutory paternity leave will be extended to 14 weeks, so that an eligible male employee can decide to take his 5-day paternity leave anytime during the period from 4 weeks before the expected date of delivery of his child to 14 weeks from the actual date of delivery.

Employer will need to provide additional maternity leave pay for the maternity leave extension. For the calculation of the additional maternity leave pay, the current statutory rate of maternity leave pay, i.e. four-fifths of the employee’s average daily wages, will continue to apply, subject to a cap of HK$80,000 per employee.

Employers may apply to the Government for full reimbursement of the additional maternity leave pay that is required to be paid and has been paid under the EAO through an administrative scheme. Further details will be announced by the Government in due course.


(ii)   Proof of entitlement to sickness allowance

for medical examination in relation to pregnancy

In addition to a medical certificate, a certificate of attendance issued by a medical professional (such as a registered medical practitioner or a registered Chinese medical practitioner) will also be accepted as documentary proof for entitling an eligible pregnant employee to sickness allowance for any day on which the employee has attended a medical examination in relation to her pregnancy.


(iii)   Amended definition of “Miscarriage”

The EAO reduces the period of pregnancy for the definition of “miscarriage” under the Employment Ordinance from 28 weeks to 24 weeks, such that a female employee whose child is incapable of survival after being born at or after 24 weeks of pregnancy, instead of 28 weeks, will be entitled to maternity leave if other conditions under the Employment Ordinance are met.


Implications

An employer who fails to grant maternity leave or pay maternity leave pay or sickness allowance to an eligible pregnant employee is liable to prosecution and, upon conviction, to a fine of HK$50,000. Whilst details of the administrative scheme for reimbursement are yet to be announced, employers should keep track of latest developments and in the meantime be prepared to amend their existing parental leave policies so that they will be consistent with the EAO, which is expected to come into force at the end of this year. We shall keep you updated when the Government announces the same.

 

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
Published by ONC Lawyers © 2020