Labor and Personnel Disputes on the “Selective Second Child” Policy (Part I)
The issue “selective second child” has been hotly debated all along since China announced its decision nearly a year ago to loosen its family planning policy and implement the “selective second child” policy, successively followed by local governments’ relevant regulations and rules, while employers and employees are very concerned about how to cope with the policy and how to guarantee compensation and benefits. We wrote this newsletter to answer the hot issues and explain relevant laws and regulations.
A) What is China’s Selective Second Child Policy?
- either of the parents is an only child; and
- only a child has been given birth to.
The new policy does not apply in case the firstborn are twins or multiple births. Therefore “selective second fetus” is not an appropriate wording, and we should put it as “selective second child” instead.
Restrictions on childbearing age and birth interval have been also specified in some provinces and municipalities. For example, a couple in Beijing can only have a second child four years after having their first or the mother should be older than 28 years when she gives birth to the second child. No restrictions have been made in Shanghai. The rules vary from province to province regarding the policy.
With the enforcement of the new policy, another dispute is also settled: whether a “selective second child” breaks the rule or not depends on whether the time of birth instead of the time of pregnancy is later than the commencement date of the new policy.
B) What benefits will be enjoyed if having a “selective second child”?
If a female employee gives birth to a second child in compliance with the family planning policy, she should be under the special labor protection for female employees specified by the Labor Law, the Employment Contract Law, the Law on Protection of Women’s Rights and Interests, the Special Provisions on Labor Protection of Female Employees and other applicable laws and regulations. That is to say, she may be entitled to most of the benefits when having the first baby, specifically:
- Special protection during the maternity leave, pregnancy and lactation period: an employer should give special protection to female employees during the above period according to law. Termination of employment contract and employment expiration shall be subject to the restrictions in the Employment Contract Law, and legal protection should be given in terms of their remuneration and work assignment: for example, break may be taken on working days before giving birth; employees shall not extend the working hours or arrange night shifts of female employees who are pregnant for seven (7) months or more and who breast-feed babies less than one year old; breastfeeding leave shall be deemed as normal attendance in case of salary adjustment.
- Maternity leave: a female employee who gives birth after 28 April 2012 shall have 98 days of maternity leave, of which 15 days may be taken before giving birth. In case of a dystocia, additional 15 days of leave shall be taken. In case of a multiple birth, additional 15 days for each additional baby shall be taken.
- Antenatal leave and breastfeeding leave: a female employee in her pregnancy of the seventh month or later (more than 28 weeks) may take antenatal leave, with approval of the employer, if her work is arranged properly. A female employee may take breastfeeding leave during the period from the date of giving birth to the date when the baby is one year old, with approval of the employer, if she is in any difficulty and her work is arranged properly. The breastfeeding leave last for 6 months and a half. Her salary during such period shall not be lower than 80% of her original salary. More protection measures are set forth in Shanghai’s local regulations.
- Prenatal physical examination: if a pregnant female employee undergoes prenatal physical examination during working hours, the time spent for such examination shall be included in her working hours, and her salary of such time shall be paid.
- Breastfeeding time: female employees who do not take breastfeeding leave to breastfeed babies less than one year old shall be given one hour of breast-feeding at work.