Maternity and Paternity Leave in Hong Kong
Eligibility for Maternity Leave
All female employees under continuous contract are entitled to maternity leave. The employment contract must simply start before the commencement of maternity leave.
How Long is Maternity Leave?
The female employee is entitled to ten weeks of maternity leave. If the delivery date comes after the expected date of delivery, the employee is entitled to an extension of maternity leave equal to the number of days from the day after the expected date of delivery to the actual date of delivery.
In the event of an illness due to pregnancy or confinement, the employee is entitled to a four-week extension of leave.
Commencement of Maternity Leave
The pregnant employee may choose to begin maternity leave between two and four weeks prior to the expected date of delivery. This is subject to the approval of the employer. In the absence of an agreement or decision, the leave period will begin four weeks prior to the expected delivery date. The employee should notify the supervisor or responsible party within the company of the expected date of confinement.
Compensation During Maternity Leave
The pregnant employee should be given maternity leave compensation of 10 weeks pay. It should be paid at the same time as wages would otherwise be paid.
Calculating Maternity Leave Pay
The daily rate of maternity leave pay should be calculated as four-fifths of the average daily wages earned by the employee in the preceding 12 months from the commencement of the leave period. If the employee has been employed for fewer than 12 months, the calculation should be based on that period. In the average daily wage calculation, periods in which the employee was not paid full wages must be included. Depending on the labor contract, this may include rest days, statutory holidays, annual leave, sickness days, previous maternity leave, sick leave, and any other working days on which the employee is not provided by the employer with work.
The employer is obligated to provide payment for maternity leave, provided that the employee has been under continuous contract for no less than 40 weeks before the commencement of the leave period. The employee must give notice to the employer of her pregnancy, in order to be eligible for compensation. The employee should be prepared to present a doctor’s note or medical certificate confirming the pregnancy. The employer is at liberty to request a medical certificate with the expected date of delivery.
Violation of Maternity Leave Regulations
In the event of an employer’s failure to grant maternity leave or pay statutory compensation, the employer may be prosecuted and, if convicted, subject to a fine of HK$50,000.
Medical Examinations Related to Pregnancy
If the employee requires a medical examination related to pregnancy or birth, either before or after maternity leave, the absence shall count as sick day. Employees are entitled to 36 days of paid sick leave (and up to 84 if additional documents are provided).
An employer may not terminate an employee from the date on which the pregnancy is confirmed by a medical professional to the end of her maternity leave, provided that the employee has been under continuous contract and has given notice of the pregnancy. If the employee is terminated immediately before her intention to provide notice of pregnancy, the employee may proceed to submit the notice, upon which, the employer is required to withdraw the termination until the maternity leave has ended. Nonetheless, the employer is permitted to terminate the pregnant employee in the event of serious misconduct or if the employee is on probation.
Violation of Regulations
If an employer is convicted of a violation of maternity-related labor regulations, including unlawful termination, the employer will be subject to a fine as much as HK$100,000.
Hazardous Work During Pregnancy
If a pregnant employee provides a medical letter stating that particular work-related tasks, such as heavy lifting or work involving ingestion of hazardous materials, are hazardous to the employee’s health during pregnancy, the employer may not allocate such tasks to employee.
Medical Certificates and Letters
Depending on the information provided, an employee may submit the relevant medical letter from registered medical practitioners, registered Chinese medicine practitioners, or registered midwives. See table:
Male employees are entitled to three days of paternity leave for the delivery of his spouse or legal partner under the conditions that he is the father of the child, he is employed under continuous contract, and he has given sufficient notice to the employer.
The employee must notify the employer of the intention to take paternity leave at least three months ahead of the expected date of delivery. The employee must later notify the employer of the dates of paternity leave any time before taking the leave. The employer is at liberty to request a signed and written statement with the name of the child’s mother, the expected and/or actual delivery date, and confirmation that he is the child’s father.
Paternity Leave Compensation
The employee is entitled to payment for paternity leave if he has been under continuous contract for no less than 40 weeks before the date of paternity leave and has provided the documents requests by the employer.
Calculating Paternity Leave Compensation
Similar to maternity leave, the daily rate of paternity leave pay should be calculated as four-fifths of the average daily wages in the 12 months preceding the first day of paternity leave. In the calculation, the employer must exclude days in which the employee does not receive complete wages or was not paid. Such periods may include rest days, statutory holidays, annual leave, sick days, previous paternity leave, and sick leave.