Maternity Leave Amendments Take Effect Today

Maternity Leave Amendments Take Effect Today 1600 583 Hugill & Ip
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the HIP answers

Maternity Leave Amendments Take Effect Today

UNICEF conducted a study into family-friendly employment policies throughout the world’s most advanced economies. The study looked at the amount of fully-paid parental leave required in various jurisdictions, as well as the provision of childcare support. Unsurprisingly, Scandinavian countries rank highest.

While Hong Kong was not included in the study, applying UNICEF’s criteria, it would have received a very low score.

A high score does not, however, automatically create a family friendly work environment.  In some places parental leave may be generous, but take-up rates are low. Japan offers 30 weeks of paid leave for fathers.  South Korea, which has the second longest period of paid paternity leave, offers 17 weeks.  In both cases most men don’t take full advantage of the benefits afforded to them, even after a national campaign encouraging them to do so. As a further example, British fathers also rarely take up shared parental leave despite being eligible.

Some countries offer next to nothing in terms of parental leave – e.g. the US – the only high-income country which doesn’t provide for any paid maternity leave.

Hong Kong’s parental leave entitlements are among the shortest in Asia and have been criticised as failing to protect parents’ interests. Prior to the passage of the Employment (Amendment) Bill 2019, the 10-week statutory maternity leave period had remained unchanged since its implementation in 1981.  A paternity leave was only introduced in March 2015.

Some steps forward have now been implemented.

Q1: When was the Employment (Amendment) Bill 2019 announced and when will it come into effect?

The Employment (Amendment) Bill 2019 was introduced on 27 December 2019 and passed into law on 17 July 2020 as the Employment (Amendment) Ordinance 2020.  The Ordinance comes into effect on 11 December 2020.

Q2: What changes does it bring?

The Employment (Amendment) Ordinance 2020 increases the paid statutory maternity leave period from 10 weeks to 14 weeks for child born or expected to be born on or after 11 December 2020.  Employees will continue to be paid 4/5th of their average daily wages for the first 10 weeks.  Employees will also be paid 4/5th of their average daily wages during the additional four weeks, but this will be capped at HK$80,000 per employee.

The Hong Kong SAR Government will reimburse employers for the payment related the extended period of maternity leave, subject to a cap of HK$80,000 per employee.

Q3: Do the additional benefit apply to all employees?

The right to paid maternity leave only applies to employees that are employed under a continuous contract of employment for no less than 40 weeks.  A continuous contract of employment is a contract for 18 hours or more per week for four or more continuous weeks.  Employees who are not employed on continuous contracts of employment still have no right to any paid maternity leave.

Q4: What other changes are involved?

The period of pregnancy defined for a “miscarriage” is reduced from 28 weeks to 24 weeks. An employee who suffers a miscarriage at or after 24 weeks of pregnancy shall be entitled to maternity leave.

A valid ‘certificate of attendance’ is acceptable documentary proof of entitlement to sickness allowance for a day on which a pregnant employee attends a medical examination.

The prohibition against termination of employment of an employee on maternity leave will be extended to cover the additional 4 weeks’ maternity leave.

Q5: The Government has commented about the added benefits that extended maternity leave will have on working parents, how so?

The Secretary for Food and Health, Sophia Chan, in July 2020 commented that the increase of statutory maternity leave will support and encourage working women to adopt breastfeeding for a longer period of time and thus improve the health and development of their children. She stated “Breastfeeding brings immediate and long-term benefits to both mothers and babies. The World Health Organization recommends exclusively breastfeeding babies up to about 6 months of age and gradually introducing appropriate solid food while continuing breastfeeding until 2 years old or beyond. Such benefits from breastfeeding are proportional to duration and exclusiveness.

Furthermore, Ricky Chu – Chairperson of the Equal Opportunities Commission – reiterated: “The EOC is pleased that the Legislative Council has passed the Bill which demonstrates the Government’s commitment in implementing the recommendations of the ‘Family Friendly Employment Policy’“.

Q6: Is there any impact on paternity leave?

The Employment (Amendment) Ordinance 2020 extends the period of time during which paternity leave may be taken from 10 weeks after the date of birth to 14 weeks – provided the child is born on or after 11 December 2020.  Paternity leave remains limited to five days and can still be taken during the 4 weeks prior to the expected date of birth.

Q7: What advice do you have for employers?

Employers should update their Human Resources policies, handbooks and internal guidelines to bring them in line with the latest statutory requirements.

Human Resources should ensure that managers are brought up to date with the new requirements to avoid confusion and possible breaches.

Employers should also keep their eyes open for the Government guidelines that are due to be published for the reimbursement of the additional maternity leave pay.

For information purposes only. Its contents do not constitute legal advice and readers should not regard this as a substitute for detailed advice in individual instances.

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