Amendments to statutory maternity benefits finally passed

On 9 July 2020, the Employment (Amendment) Bill 2019 (Bill) was passed at the Legislative Council. The Bill introduces amendments to the Employment Ordinance (Ordinance) to extend the statutory maternity leave period from 10 weeks to 14 weeks, and technical amendments to rationalise the current statutory maternity leave regime (Amendments).

We summarise the effect of the Amendments as follows:

 

 

Current position

New position

1.

Period of statutory maternity leave

A female employee employed under a continuous contract is entitled to a continuous period of 10 weeks of statutory maternity leave.

The employee may also take a further period of leave of not more than 4 weeks on illness or disability arising out of the pregnancy or confinement.

The statutory maternity leave period is extended to 14 weeks.

The employee still has the option to take a further period of leave of not more than 4 weeks on illness or disability arising out of the pregnancy or confinement.

2. 

Maternity leave pay

If the employee has been employed under a continuous contract for not less than 40 weeks immediately before her maternity leave commences, she is entitled to maternity leave pay equal to four-fifths of her average daily wages.

The current statutory rate of maternity leave pay is maintained for calculating the maternity leave pay in respect of the additional 4 weeks’ maternity leave, subject to a cap of $80,000 per employee. Note also an employer is not prohibited from paying an amount higher than the cap under the contract of employment.

The Government would fund the additional pay and employers who have paid out the additional maternity leave pay to employees may seek reimbursement from the Government by way of an administrative scheme, subject to the cap of $80,000 per employee.

3. 

Definition of ‘miscarriage’

‘Miscarriage’ is defined in the Ordinance as ‘the expulsion of the products of conception which are incapable of survival after being born before 28 weeks of pregnancy’. 

The period of pregnancy is shortened to 24 weeks in the amended definition of ‘miscarriage’.

4. 

Pre-natal medical examination

A female employee who is absent from work for the purpose of attending a medical examination in relation to her pregnancy would be entitled to sickness allowance if she is able to produce a medical certificate issued by a registered medical practitioner or registered Chinese medicine practitioner.

A female employee is entitled to sickness allowance if she is able to produce a certificate of attendance issued by a professionally trained person, i.e., a registered medical practitioner, registered Chinese medicine practitioner, registered midwife or registered nurse as proof.

5. 

Paternity leave

An eligible male employee is entitled to take paternity leave of 5 days during the period beginning 4 weeks before the expected date of the delivery of his child and ending 10 weeks from the actual date of the delivery.

The period in which an eligible male employee may choose to take paternity leave begins 4 weeks before the expected date of the delivery of his child and ends 14 weeks from the actual date of the delivery of his child.

 

Transitional arrangements

The Employment (Amendment) Ordinance 2020 (Amendment Ordinance) will come into operation on a day to be appointed by the Secretary for Labour and Welfare by notice published in the Gazette (Commencement Date). Once the Amendment Ordinance comes into operation, the following transitional arrangements as provided for in the new Schedule 10 of the Ordinance apply:

 

 

 Where Amendments do not apply

 Where Amendments apply

 1.

Statutory maternity leave and maternity leave pay

An eligible female employee whose confinement (i.e. the delivery of a child) occurs before the Commencement Date is entitled to maternity leave and maternity leave pay following the old regime.

If an eligible female employee’s confinement occurs on or after the Commencement Date, even though notice of her pregnancy and of her intention to take maternity leave is given before such date, she is nonetheless entitled to the 14 weeks’ maternity leave and the additional maternity leave pay.

2. 

Statutory paternity leave

An eligible male employee whose child is born before the Commencement Date is entitled to paternity leave following the old regime.

If an eligible male employee’s child is born on or after the Commencement Date, even though he gives notification for taking paternity leave in respect of the birth of his child before the Commencement Date, the Amendments would apply in relation to his entitlement to paternity leave.

3. 

Termination of employment

Where an eligible pregnant employee’s contract of employment is terminated by her employer, if her confinement occurs before the Commencement Date, even though the date of termination falls on or after the Commencement Date, the employer shall be liable to pay to the employee, among others, maternity leave pay for 10 weeks.

If an eligible pregnant employee’s confinement occurs on or after the Commencement Date, and the date of termination of her contract of employment falls on or after the Commencement Date, the employer shall be liable to pay to the employee, among others, maternity leave pay for 14 weeks. 

 

Comments

Employees who are expecting a child should take note of the Amendments and plan accordingly. Meanwhile, employers should make corresponding adjustments to cater for the needs of their employees and to ensure compliance with the Ordinance as amended. Apart from the above changes, employers are reminded that the other maternity protection provisions under the Ordinance continue to operate.