China’s Provinces Implement New Changes to Parental Leave

From Johnny Choi & Xu Zhou, DLA Piper

Following the introduction of the three-child policy on 31 May 2021 and the release of the amended national family planning regulations in August, more than 20 provinces and cities in China amended local family planning rules. These rules extended maternity leave and paternity leave and introduced a new type of leave, namely childcare leave. Such measures are aimed at boosting the childbirth rate to cope with the decline of childbirth and ageing population concerns in China. The table below summarises some changes implemented in several provinces and cities:

Parental leave entitlement varies among different provinces and cities. Beijing, Shanghai, Tianjin, Sichuan and Zhejiang further published detailed guidelines on the implementation of the changes, which increased the intricacy. For example, Beijing allows female employees who were on maternity leave at the time the amendments to local family planning rules were released to enjoy the extended childbirth leave, while Shanghai grants extended childbirth leave to female employees who gave birth to babies on or after 31 May 2021 in response to the three-child policy.

On the new childcare leave, the implementation rules differ even more. Beijing and Shanghai make it clear that annual childcare leave is not calculated in calendar years, but is dependent on the birthdate of the child, while Sichuan requires the childcare leave to be calculated in calendar years. Beijing and Shanghai stipulate that childcare leave should be added up for couples having more than 1 child, while Zhejiang allows the couples to take a fixed number of days of childcare leave regardless of the number of children they have.

Nevertheless, there are still several issues that are yet to be clarified by the local government. For instance, Beijing states that the total amount of childcare leaves a couple can take each year is no more than 10 working days without mentioning how employers can figure out the allocation of childcare leaves between the husband and wife. Though the remuneration during childbirth and childcare leave should not be reduced, it remains unclear whether the employer must pay performance wages, bonuses or commissions which are calculated based on the employee’s performance. The rules are silent as to whether unused childcare leave may be carried over to the next year or encashed, and whether foreign nationals working in China are entitled to childbirth and childcare leave.

The reaction to the extended leave is mixed, with some concerned that it may increase gender discrimination from employers in the job market. It remains to be seen whether the government will release further guidance to address gender discrimination on this issue.

From the employer’s perspective, in light of the legal development, employers are suggested to take the following actions to be in compliance with the new requirements and strengthen employee management in daily operation:

1. Update corresponding internal policy on parental leave, formulate detailed rules on employees’ taking parental leave to regulate the issues that are not addressed in regulations at the provincial/municipal level.
2. Establish a file of employees’ personal information to verify and track the parental leave taken. The employer will undoubtedly need to collect and process personal information of the employee and his/her family members, therefore should ensure compliance with requirements of personal information processing set forth by the Personal Information Protection Law.
3. Keep an eye on the legal development in this regard, especially for companies having subsidiaries/offices in more than one location in China and employers having employees based in places outside of the company’s registered place, the company should pay attention to the difference of the requirements among different locations and adopt the correct rules.