There are times during the employment relationship when personal life must take over and work becomes a secondary issue. This can be the joyous announcement of pregnancy and the birth of a child or the cheerlessness of sickness.
In this third instalment of Employment Focus Week we look at the rights and protections given to employees when personal circumstances take precedence and the changes that are on the horizon.
Hong Kong is widely regarded as providing some of the meanest family leave benefits among the developed economies. While other jurisdictions offer an array of family friendly rights including long periods of flexible maternity and paternity leave, parental leave, adoption leave and compassionate leave, the Employment Ordinance only grants two forms of family leave: maternity and paternity leave.
Maternity Leave – Key Facts:
- Female employee’s employed under a continuous contract for a period of 40 weeks or more before the commencement of maternity leave are entitled to 10 weeks’ paid maternity leave.
- Female employees employed under a continuous contract for a period of fewer than 40 weeks before the commencement of maternity leave are entitled to 10 weeks’ unpaid maternity leave.
- Paid maternity leave is paid at the rate of four-fifths of average daily wages.
- Maternity leave can commence at any time between two and four weeks before the expected date of birth. If an agreement cannot be reached, maternity leave will start four weeks before the expected date of birth.
- In the event of premature birth, maternity leave will start automatically on the date of birth. If the birth is overdue, the period of maternity leave will be extended by the amount of time between the expected date of birth and the actual date of birth.
- A further period of leave not exceeding four weeks will be granted on the grounds of illness or disability raising from the pregnancy or childbirth.
- Before taking any leave the employee must give notice of her pregnancy and of her intention to take maternity leave to her employer. The presentation of a medical certificate confirming pregnancy shall be deemed notice to an employer.
- From the moment notice of pregnancy is given to the employer, until the time the employee returns from maternity leave, except in circumstances of gross misconduct, an employer cannot terminate the employee’s employment.
Paternity Leave – Key Facts:
- Male employees employed under a continuous contract for a period of 40 weeks or more before the day on which paternity leave is taken are entitled to three days’ paid paternity leave.
- Male employees employed under a continuous contract for a period of fewer than 40 weeks before the day on which paternity leave is taken are entitled to three days’ unpaid paternity leave.
- Paid paternity leave is at the rate of four-fifths of the employee’s average daily wages.
- Paternity leave can be taken in consecutive or separate days during the period from four weeks before the expected date of birth to 10 weeks after the actual date of birth.
- To be entitled to paid paternity leave, the father must provide confirmation of the birth of the child and proof that he is the child’s father.
Enhancements on the horizon
The family leave entitlements provided under Hong Kong law are among the meanest of all developed economies. It is, therefore, unsurprising that Hong Kong has among the world’s lowest birth rates that is far below the level at which the Hong Kong population can replace itself and with potentially severe economic consequences. LegCo appears to have recognised the need to strengthen the pro-family elements of the employment regulatory regime in Hong Kong and intends to roll out enhanced family leave entitlements in the future, including:
- increasing paid paternity leave from three days to five days for children born on or after 18 January 2019; and
- increase statutory maternity leave from 10 weeks to 14 weeks, with paid maternity leave for the additional four weeks being calculated at four-fifths of the employee’s average daily wages, but capped at HK$36,822 (being four-fifths of four weeks’ wages of an employee with a monthly wage of HK$50,000).
The increased maternity has already been granted to female civil servants and it is intended that it will be legislated to apply to all employees in Hong Kong by 2020.
While Hong Kong has traditionally provided inadequate maternity and paternity benefits, it has provided fairly generous paid sickness entitlements.
Paid sick leave – key facts
- The right to paid sickness absence accrues at the rate of two days per month during first year of employment and four days per month thereafter.
- A maximum of 120 days’ sickness credits can be accumulated.
- An employee who has accumulated sickness day credits is entitled to take paid sick leave if: (i) the employee is employed under a continuous contract; and (ii) has provided a valid medical certificate from a Hong Kong registered doctor, Chinese medicine practitioner or dentist.
- An employee who is on paid sickness absence is protected from termination on the day of such absence.
In addition to the protection from termination afforded to pregnant employees until they have returned from maternity leave and employees on statutory paid sick leave, employees are also protected from termination of less favourable treatment under the Disability Discrimination Ordinance; (ii) the Family Status Discrimination Ordinance; and (iii) the Sex Discrimination Ordinance.
Our team at Hugill & Ip has extensive experience in dealing with Employment matters – so if you need further advice on these subject and other topics discussed, get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.