Introduction

The Secretary for Labour and Welfare has recently announced that the Employment (Amendment) Ordinance 2020 (“EAO”) will come into effect on 11 December 2020. Working mothers whose actual date of confinement is on or after the effective date will benefit from the improvements as conferred under the EAO. However, employees whose confinement occurs prior to the effective day are entitled to the current 10 weeks of maternity leave. As explained in our July 2020 Newsletter, the following are the key amendments:

(1) 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.

(2) 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.

(3) 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. Given that the Government has yet to announce the details of reimbursement of the additional maternity leave pay payable under the EAO, employers should keep abreast of the amendments and update their internal policies in respect of maternity leave and sickness allowance for pregnancy medical examinations when the details are available. We shall keep you updated when the Government announces the same.