With effect from 27 February 2015, male employees who have been employed under a continuous contract for 40 weeks or more may enjoy 3 days of paid paternity leave if the other requirements under the newly amended Employment Ordinance are satisfied.

Introduction

A male employee will enjoy 3 days of paternity leave in respect of the birth of his child born on or after 27 February 2015 if he is employed under a continuous contract. However, not every male employee will be entitled to paternity leave pay.

Requirements for paternity leave pay

Paternity leave pay will be payable to the male employee if the following requirements are satisfied:

1.       the male employee is the father of the new-born child (the employee is not required to be married to the mother of the child);

2.       he has been employed under a continuous contract (i.e. contracted to work for at least 18 hours per week for 4 consecutive weeks or more) for not less than 40 weeks immediately prior to the taking of the paternity leave;

3.       he has given notice to his employer of his intention to take paternity leave in advance; and

4.       he has provided the employer with the relevant document (e.g. the birth certificate of the child) within 12 months of the first day of the paternity leave.

Paternity leave notice

An employee may give notice to his employer of his intention to take paternity leave in the following ways:

1.       at least 3 months before the expected date of delivery of the child, setting out the intended date of his paternity leave, or

2.       if he has not given notice to his employer 3 months in advance, he must inform his employer at least 5 days before the intended date of his paternity leave.

Further document required

An employer may request a written statement signed by the employee, containing the following information:

1.       the employee is the child’s father;

2.       the name of the child’s mother; and

3.       the expected date of the delivery (or the actual date of the delivery if the child has been born).

If the personal data of the child’s mother are required for the purpose of the application of and granting of paternity leave and paternity leave pay, employers shall ensure that the written consent of the child’s mother was obtained in relation to the disclosure and use of her personal data.

Paternity leave may be taken before or after the birth of the child

The 3 days of paternity leave can be taken consecutively or separately during the period from 4 weeks before the expected date of delivery of the child to 10 weeks after the date of birth of the child.

Rate of paternity leave pay

The rate of paternity leave pay is 4/5 of the daily average wages earned by the employee during the 12 months preceding the commencement of the paternity leave (or a shorter period if he has been employed by the employer concerned for less than 12 months immediately before the date of commencement of his paternity leave). 

When must paternity leave pay be paid?

If the employee provides the employer with the birth certificate of his child on or before the paternity leave day, paternity leave pay must be paid when he is next paid his wages after the said paternity leave day (or within 7 days of the cessation of his employment if applicable). 

If the birth certificate of the child is provided to the employer after the paternity leave day,  paternity leave pay must be paid when he is next paid his wages after the birth certificate is submitted (or within 7 days of the cessation of his employment if applicable).

Offence and penalty

An employer who (without reasonable excuse) fails to grant paternity leave to an employee and fails to pay paternity leave pay may be liable to a fine of HK$50,000.

Conclusion

In view of the new obligation to grant paternity leave, all employers in Hong Kong should review their “leave policy” to include statutory paternity leave (or more favourable terms if applicable), to set out the detailed procedures, time table, and administrative requirements for employees to apply for paternity leave as well as the related work arrangements during the period of paternity leave. Moreover, new employment contracts shall also include the relevant provisions for statutory paternity leave arrangements (or more favourable term if applicable) so that employees would be assured of such statutory employment benefits and what they should do if they want to apply for paternity leave in the future.