The State Council of PRC has recently promulgated the “Special Provisions on Labour Protection for Female Employees” (the “Special Provisions“), which took effect on 28 April 2012. The Special Provisions supersede the “Provisions on Labour Protection for Female Employees” dated 21 July 1988, and provide better protection for female employees in China.
Some main points in the Special Provisions are highlighted below:
Prohibited work for female employees
The Special Provisions contain a list of prohibited work for female employees which is re-categorised in accordance with four types of circumstances, namely “under normal conditions”, “during menstrual period”, “during pregnancy”, and “during nursing period”. The category “the period of preparation for giving birth after marriage” has been deleted to make the list more consistent with the classification in the PRC Labour Law.
The Special Provisions have strengthened protection for female employees during pregnancy and nursing periods. On the other hand, the protection during menstrual period has been weakened.
Maternity leave and miscarriage leave for female employees
Pursuant to the Special Provisions, the maternity leave for female employees has been extended from 90 days to 98 days.
For the first time it is made clear that female employees who suffer miscarriage in the first 4 months of pregnancy are entitled to 15-day leave whereas after 4 months of pregnancy, 42-day leave.
The Special Provisions provide that if employers have contributed to maternity insurance, the maternity allowance at an amount equivalent to the average monthly salary of all employees of the company in the previous year would be paid out of the insurance fund. In the case where employers have failed to make such contributions, they are obliged to pay the maternity allowance the amount of which is equivalent to the salary of that particular employee before the maternity leave. Maternity insurance also covers medical expenses of maternity or miscarriage.
The policy is likely to encourage employers to contribute to maternity insurance as it can mitigate their responsibility for the payment of maternity allowance and various medical expenses.
Administrative sanctions for violating the rights of female employees have been duly introduced. These include rectification and fines up to RMB5,000 per affected female employee. Some serious violations, such as requiring pregnant or breastfeeding employees to perform prohibited work, would result in fines up to RMB300,000, or, if worst comes to worst, cessation of business. In extreme circumstances, criminal liability may be pursued.
Employers in China should familiarise and make sure that they are in compliance with the new requirements under the Special Provisions.