Entitlement:

As per Article 62 of Labour Law of China read with Article 7 of Special Provisions on the Labor Protection of Female Employees, a female employee (including foreign employee) is entitled to 98 days of maternity leave (of which 15 days can be taken before delivery and 83 days after birth)

Provided the maternity leave will be increased by 15 days; for multiple births, the maternity leave will be increased by 15 days for each additional baby.

Prohibition on dismissal:

Article 5 of Special Provisions on the Labor Protection of Female Employees prohibits an employer from terminating a female employee due to pregnancy or childbirth.

Payment of maternity allowance:

Article 60 of Social Insurance Law of China requires an employer to pay maternity insurance premium (which is the part of social insurance premium) every month.

Rate at which maternity premium is paid varies province to province (e.g., 0.5% of monthly wage in Guangxi and Shanghai, 0.7% in Chongqing and so on)

Since Maternity insurance is paid in China in respect of an employee, Social Security Bureau is responsible to pay maternity allowance to a female employee who is no maternity leave.

However, an employer is liable to pay maternity allowance (equal to full salary of that employee) in case monthly maternity insurance is not paid in respect of an employee.

In determining the amount of maternity allowance, the Social Security Bureau compares employee’s monthly salary and the average monthly salary of all employees during the last 12 months.

The Social Security Bureau pays allowance not more than 3 times the average salary in its jurisdiction and balance amount (if any) is paid by employer.

For example, the average monthly salary in Shanghai in 2015 was RMB 5,939.

Maximum allowance to be paid by the Bureau: RMB 5,939 × 3 = RMB 17,817.

Balance amount (beyond RMB, 17,817, if any) shall be paid by employer when her salary/average salary exceeds the maternity allowance payable by the Burau.

Procedure of claiming allowance:

Generally, employee (herself or through someone) submit required documents related to pregnancy with her employer. Employer then furnishes those documents to the Bureau or medical insurance agency.

Q&A:

1. What are the maternity laws applicable to non-China citizens who conceived in China but have moved back to their home country? Are there specific regulations or policies in China that govern such situations?

As mentioned above relevant laws of China apply to foreign workers as well but they are silent about applicability on a foreign worker who has left China. It is advisable to visit local office/branch of the Social Security Bureau since allowance is paid by the Bureau. For maternity benefit related provisions please refer to:

• Labour Law of the People’s Republic of China
• Special Provisions on the Labor Protection of Female Employees
• Social Insurance Law of the People’s Republic of China read with provincial rules

2. Will an employee be eligible for maternity benefits while she is not on Chinese soil? If so, what kind of benefits can she claim?

Law is silent on this we need to see what process is being followed by the Bureau but yes, a company established in China is not liable to pay full salary since you have been depositing monthly maternity insurance (as part of social insurance premium) on her behalf. Therefore, you are advised to visit local office/branch of the Social Security Bureau since allowance is paid by the Bureau.

3. She may have no intentions to go/come to China post her maternity leave. What are the implications for her employment status and maternity benefits? Are there any specific steps we need to take or consider in this scenario? Can we terminate her?

At this stage it will be illegal to terminate her. Once the period of maternity leave is over, she should be asked to resume the office if she doesn’t, you will have valid ground to terminate her.

 

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