By: Helen Colquhoun, Partner, Hong Kong & Wundy Lee, Associate, Hong Kong, DLA Piper
On 10 October 2018, the Chief Executive stated in her policy address that the government proposed to increase the statutory maternity leave entitlement from ten to 14 weeks.
This finally came to fruition on 9 July 2020 when the Employment (Amendment) Bill 2019 (the Amendment Bill) was passed by the Legislative Council. The Amendment Bill is expected to come into force by the end of the year.
Current Legal Regime
The Employment Ordinance (Cap. 57) (EO) currently provides that a female employee employed under a continuous contract will be entitled to ten weeks of statutory maternity leave, subject to other conditions being met.
If the female employee has been employed under a continuous contract for no less than 40 weeks and satisfied the requisite notification requirements under the EO, her statutory maternity leave will be paid at a daily rate of four-fifth of her average daily wages earned in the 12 months’ period (or shorter period if employed for less than 12 months) preceding the first day of leave.
Details of Amendments
Some of the key amendments proposed by the Amendment Bill include:
- Increasing the statutory maternity leave by an additional four weeks to a total of 14 weeks.
- Statutory maternity leave pay for these four additional weeks will be maintained at four-fifths of the employee's average daily wages, but subject to a cap which is currently proposed to be HKD80,000 per employee. Employers may apply to the government for reimbursement of the cost of these additional four weeks of statutory maternity leave.
- Allowing a certificate of attendance issued by a medical professional, for days on which a female employee attends a medical examination in relation to her pregnancy, to be accepted as proof in respect of entitlement to sickness allowance. In other words, a certificate of attendance is sufficient like other medical certificates.
- Revising the definition of “miscarriage” in the EO from miscarriage “before 28 weeks of pregnancy” to “before 24 weeks of pregnancy”. This means that female employees suffering a miscarriage at the 24th week of pregnancy or later will now be entitled to statutory maternity leave if other conditions are satisfied.
- Extending the period within which eligible male employees are entitled to take, from ten weeks to 14 weeks after the actual date of delivery of the child. This is to align the statutory paternity leave with the extended period of statutory maternity leave.
Implications for Employers
- The EO provides that employers are legally prohibited from terminating a pregnant employee until the end of her statutory maternity leave (subject to certain exceptions). Given that the statutory maternity leave entitlement has been increased from ten to 14 weeks, the duration of the prohibition on termination is similarly extended. Work arrangements should also be tailored accordingly. Transitional arrangements will be in effect once the Amendment Bill is operational.
- Employee handbooks and other company material containing details of leave entitlements should be updated once the Amendment Bill comes into force later this year. In particular, some companies have been granting employees enhanced maternity leave (i.e. over statutory minimum) and may have formulated special rules in relation to the enhanced maternity leave. In light of the change, those companies should check to see if the current enhanced maternity leave will be impacted by the new statutory enhancements and revise the rules to ensure compliance.
For employers who want to provide enhancements over and above the statutory minimum, this is permitted provided such enhancements comply with the statutory provisions. Employers may wish to revisit the level of enhancement provided to ensure it remains competitive and attractive to attract talent.
Paul Arkwright
Publisher
