Updated maternity leave entitlements in Guangdong Province and Shenzhen Municipality, China

In China since 01 January 2016, which is when the amendments to the Population and Family Planning Law of the People’s Republic of China took effect, female employees who give birth in accordance with the applicable laws and regulations have been entitled to 98 days of regular maternity leave and the special leave entitlement for a late childbirth was removed. (See our prior Labour Leader addressing this issue changes by clicking here.) To keep in line with the national law, the Guangdong Provincial Population and Family Planning Regulations were amended on 30 December 2015, which removed the leave for a late birth but provided an additional 30 days for each lawful birth. The Amended Regulations extend the 30 day entitlement to 80 days of paid maternity leave to female employees in Guangdong Province. Any female employee who was already on maternity leave when the new regulation came into force on 29 September 2016 is entitled to this additional 50 days of maternity leave.

Notably, Shenzhen has not removed the additional 15 days for a qualified “late birth” under its local regulations despite the amendments to the national law and to the provincial regulations. Under the old regulations that are applicable in Shenzhen, a late birth means a birth to a married female employee bearing her first child at the age of 23 years or older. Thus, a female employee in Shenzhen who qualifies for a late birth is now entitled to a total of 193 days of paid maternity leave.

Will the state maternity insurance cover the full 178 or 193 days and what does this mean for employers?

The maternity allowance provided by the social insurance fund centre only covers the regular 98 days of maternity leave for a normal delivery, an additional 30 days for a difficult birth or dystocia provided, and an additional 15 days for a multiple childbirth. Employers are required to pay their employees their regular base salary for the extended maternity leave provided under the provincial and municipal regulations. Thus, the Amended Regulations will bring additional cost and extended vacancies to employers in Guangdong Province, which includes major cities such as Shenzhen, Dongguan and Guangzhou.

What should employers do in light of the Amended Regulations?

As an initial matter, employers should check to see if any of their employees are currently on maternity leave, and if so, notify them of the extended leave. Employers should then notify the relevant managers and ensure they have adequate coverage, if necessary, for the extended absence of the pregnant employee.

Employers will also need to update their template notification letters to reflect the extended leave and update their leave-related policies to reflect these changes.

Finally, employers should remind their managers and recruitment personnel that discrimination based on gender or pregnancy or marital status is unlawful, as there will be employees who may seek to circumvent these enhanced benefits for female employees by hiring and/or promoting more male candidates. That being said, it is advisable to review the company rules and to request employees to provide sufficient and genuine medical records and pregnancy files to prevent potential abuse of the extended maternity leave entitlement.