Days off for new dads!

Latest development in Hong Kong

Many countries now have statutory paternity or parental leave which provides a father time off work to care for a child as well as to attend to his spouse before or after confinement. What about Hong Kong?

Currently, under the Employment Ordinance (the “Ordinance“), a female employee is entitled to 10 weeks’ maternity leave. Such leave will be paid if the employee has completed at least 40 weeks’ continuous employment with her employer by the commencement of maternity leave. There is however no provision for paternity leave under the Ordinance, although quite a sizable number of employers do provide paternity leave voluntarily.

Since 1 April 2012, all full-time government employees who have no less than 40 weeks’ continuous service immediately before the expected or actual date of childbirth have become eligible for 5 days’ paternity leave on full pay on each occasion of childbirth. In November 2012, the government has agreed to start drafting new laws to give Hong Kong fathers three days’ paternity leave for the first time.

Drafting considerations

A bill to enact new statutory paternity leave provisions is currently being drafted. The key drafting considerations will mostly mirror those for maternity leave and will include: eligibility for paternity leave, whether paternity leave will be paid or unpaid, the length and timing of paternity leave.

Eligibility

Some key questions that law-makers may need to consider in relation to a father’s eligibility to paternity leave include:

• Will the benefit extend to a father who adopts a child?
• Is being legally married a prerequisite to paternity leave entitlement? If yes, is there a date by which the parents must be married?
• Does a father have to complete at least 40 weeks’ continuous employment with his employer before he becomes qualified to take (paid) paternity leave?
• Is any documentary proof of fatherhood (e.g. marriage certificate, doctor’s certificate and birth certificate) required before paternity leave will be granted? If yes, when should such documents be produced?

Payment

Another important question that law-makers need to deal with is whether or not paternity leave should be paid, and if yes, the party to pay for that leave (employer or government) and the level of payment (i.e. full pay or reduced pay, and if reduced pay, the amount of reduction). The Labour Advisory Board has recommended that the rate of payment should be 80% of the daily average of the wages earned by the employee during the 12 months preceding the commencement of the paternity leave (i.e. the same rate as maternity pay).

Other questions in relation to payment include for example whether an employer should be required to make pension contributions during paternity leave.

Length

How long should the statutory paternity leave be? The government’s current proposal to grant 3 days’ paternity leave has been criticised by some as ridiculous given the government has allowed its own employees to take 5 days’ paternity leave on full pay. Also, should adjustment be allowed in special circumstances, e.g. in the case of difficult birth or birth resulting in the death of the mother?

Timing

Law-makers will also need to consider when paternity leave should be taken. Possible options include, for example, during maternity leave or within 1 month before and after the child’s birth.

Note to employers

It appears that employers will soon have an obligation to provide paternity leave to their employees and should therefore start planning for the ways to implement paternity leave. For example, employers should start thinking about procedures for taking paternity leave and create systems to facilitate supervisors and human resources staff to take note of the leave period and also to deploy manpower to relieve the male employees. Employers should also communicate details of such procedures and systems to their employees through circulars or other simple means. Proper arrangements for providing paternity leave will not only assist employers in ensuring compliance with the statutory requirements but will also make it easier for both employers and employees to agree on the work arrangements in advance.

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鍾詠雪

合夥人 | 商業事務 | 僱傭與退休金

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