Most of our clients know very little about China employment law but most know well that China has high expectations on how China employers must treat pregnant and nursing employees. Our clients know this because they all seem to know of some foreign company that had to pay a lot of money for not knowing this.
Chinese labor law does take a humane approach regarding pregnant or nursing female employees. This means employers should familiarize themselves with applicable laws relating to pregnancy and nursing and do their utmost to be aware of which of their employees are either pregnant or nursing. A failure to do so can result in civil damages, administrative fines, and even criminal liability. In this post, I highlight a few of the things you as an employer in China should keep in mind in dealing with a pregnant or nursing employee, or even just an employee who claims to be pregnant or nursing. It is not uncommon for terminated female employees to claim they were pregnant when fired, whether they were or not.
The most important thing for you to know is that Chinese labor law prohibits employers from unilaterally terminating the labor contract of a pregnant or nursing employee. For the same reason, an employer cannot initiate a mass layoff that will include employees who are pregnant or nursing.
China’s laws also prohibit an employer from arranging overtime or night shifts for female employees more than seven months pregnant or nursing. Regular checkups before birth are considered normal working time. This means you as the employer cannot make your pregnant employee make up for work time lost by missing work due to a doctor’s appointment. Moreover, if your pregnant employee provides you with a certificate from a health institution proving she is unable to perform her usual job duties due to her condition, you must reduce her workload or adjust her job duties accordingly.
According to the Special Rules on the Labor Protection of Female Employees (女职工劳动保护特别规定), female employees are entitled to the following special leaves:
- A total of 98 days of maternity leave, including 15 days before birth.
- Additional special leave for a “late” childbirth (as explained below, the rules vary by locality).
- An additional 15 days of special leave for a “difficult” childbirth.
- An additional 15 days of special leave for each additional child (twins, triplets, etc.)
- 15 days of special leave for an employee who miscarries when less than four months pregnant.
- 42 days of special leave for an employee who miscarries when more than four months pregnant.
As noted above, the rules on additional special leave for a late childbirth differ by locale. For example, in Jiangsu province, the Jiangsu Province Population and Family Planning Regulation (江苏省人口与计划生育条例) mandates employers give an additional 30 days leave for a “late” childbirth and an additional 10 days of giving care leave for the husband. For purposes of China’s employment laws, a childbirth is considered “late” if the woman has reached the age of 24 and is giving birth for the first time, or if the woman was married after the age of 23, and is giving birth for the first time.
China employers also must provide at least one hour per day during normal working hours for female employees who need to breastfeed, until the baby turns one year old. Female employees who birthed more than one baby get an additional hour per day for breastfeeding for each additional baby.
Bottom line: Chinese labor law offers a number of protections to female employees who are pregnant or nursing. And as is true of just about all aspects of China’s employment laws, you as employer need to be mindful of both national and local requirements on this.