Content Outline
Maternity Rights For Working Mothers
In Hong Kong for a woman to be entitled to two weeks of paid maternity leave she must be under continuous contract or continuous employment for more than 40 weeks and working for a minimum of 18 hours a week. This helps the person to maintain his or her job and income at a critical stage.
1. Maternity leave of
- 14 weeks of continuous leave: This is the core entitlement for all eligible employees.
- Additional leave for late childbirth: If your baby arrives after your expected due date, you’re entitled to extra leave to bridge the gap between your expected due date and the actual birth.
- Up to 4 weeks of illness leave: This is separate from your maternity leave and sick leave entitlement. It allows additional recovery time for pregnancy or birth-related complications.
From December 2020, maternity leave entitlements for a pregnant mother in Hong Kong were enhanced in a number of ways. Maternity Leave (Amendment) Bill 2000 increased statutory maternity leave from 10 to 14 weeks for all women giving birth on or after the date of the commencement of the Bill. This leave period is beneficial to mothers because it provides longer time for mothers to take care of their new born babies and other responsibilities that come with motherhood.
The legislation also gives an option on when to begin the maternity leave. The leave usually starts four weeks before the expected day of delivery but it also has the provision for the employees and employers to agree on an alternative start date which also ranges between four to two weeks before the birth. This makes it easier to personalize the product based on specific situations.
In addition, if a woman gives birth before the 14th week the leave period starts on the date of birth and not on the expected date of delivery. This means that mothers get their full leave entitlements even if they are required to work around midnight and deliver their baby.
To receive these benefits, an expectant mother has no choice but to notify her employer about the pregnancy and her plans to take maternity leave. The process of informing them is useful in protecting their rights and enables them to enter the process of parenting without resistance.
Policies on Financial Assistance During Maternity Leave
Apart from the extended leave period the Maternity Leave (Amendment) Bill 2000 also provided for financial assistance to those mothers who were entitled to such assistance. Here’s a breakdown of the key points:
Maternity Leave Pay: Employees who meet the eligibility requirements of employment for more than 40 weeks and submitted pregnancy documentation are entitled to full maternity for the 14-week period.
Pay Rate: The average daily wages of an employee paid during maternity leave is 4/5ths of the average daily wages of an employee for the preceding 12 months.
Cap on Additional Weeks: The maternity leave pay for the extended 4 weeks of leave (from 10 weeks to 14 weeks) is provided at the rate of HK$80,000 per employee.
Reimbursement Scheme: Employers can make a claim for the maternity leave pay for the additional 4 weeks through the Reimbursement of Maternity Leave Pay Scheme (RMLP Scheme) under Labour Department.
Required Documentation: Employers that seek reimbursement have to keep various records, such as employee payment records, wage records, and proof of pregnancy that is obtained from the employees.
This financial support system assists the expecting mothers in relieving the burden of the financial costs that would have been incurred during their period of maternity leave.
The Labour Department has mentioned that the RMLP Scheme, which includes a one-stop online portal to make the applications for the employers electronic, will be put into practice as soon as it is possible in the first half of 2021.
Maternity leave pay does not cover extra maternity leave in case of a late delivery and/or illness or disability caused by the birth or pregnancy. The female employee may still take sick leave in these cases and can be given the sickness allowance. Thus, the Hong Kong Employment (Amendment) Ordinance 2020 has taken the view that the certificate of attendance given by a registered medical practitioner, nurse or midwife is now accepted as proof of sickness allowance for the pregnant employee who attended the medical examination concerning her pregnancy.
Job Security During Pregnancy: A Strong Protection
The Maternity Leave (Amendment) Bill 2000 not only provides paid leave and financial benefits but also ensures an employment for the expecting mothers. Here’s a breakdown of this important protection:
Prohibition on Termination
An aggrieved employer is prohibited from terminate an employee who had communicated to them about her pregnancy, unless it is in cases of gross misconduct.
Reason for Dismissal Irrelevant
This protection is unshakeable. It does not even matter if the reason for the termination seems unrelated to the pregnancy: such dismissal is illegal.
Unawareness of Pregnancy
In case an employer dismisses an employee without his or her knowledge about the pregnancy, the dismissing employer is required to rescind the dismissal when the employee informs him or her of the pregnancy.
Consequences of Breach
With violation of this law the employers face some severe penalties.
- Payment of all salaries and statutory maternity pay to the employee up to the completion of the planned leave.
- Criminal offense conviction.
- Additional financial penalties:
- One additional month’s wages.
- Total HK$150,000 for employees with greater than 2 years of service.
Legal protection of such a nature provides expecting mothers with the most effective guarantee that they can easily concentrate on their pregnancy and future parenthood without the fear of losing their jobs. It also influences employers to leave no stone unturned in terms of making workplaces more supportive of pregnant working women.
Protection and Rights for Pregnant Employees in Hong Kong
A pregnant employee who furnishes a medical certificate cannot be forced to perform work which can be deemed dangerous or involving strenuous movements that may endanger her pregnancy. If her job involves such work the employer must change her duties within 14 days of receiving the certificate.
The employees are supposed to serve the right notices to the employers and also make them understand about the rights of a pregnant woman. Employers can provide better terms for maternity benefits and many of the multinationals companies guarantee the same maternity benefit for their employees irrespective of the country of work and in some cases for up to six months of maternity leave. However in the absence of a contract there is no provision for additional benefits and the employee is only entitled to the statutory benefits and rights listed above.
Part-Time Working
It is clear that the legislation is not merely restricting the right to maternity benefits to employees who are employed under a continuous contract but also to many other benefits under the Employment Ordinance.
The ‘continuous contract’ is defined as working more than 18 hours per week. Mothers who are returning to the workforce and wish to work part time or on flexible schedules, on a schedule of alternating weeks or job-sharing must meet this requirement. Failing to do so means they won’t qualify for many protections, including:Failing to do so means they won’t qualify for many protections, including:
- Absence and personal sick payment.
- Statutory paid leave
- Employment protection
- Termination of employment and long-service benefit.
Mothers who are planning to return to work with altered times can avoid compromising their statutory entitlements by paying close attention to the 18-hour weekly requirement.
Protection Against Discrimination: Safeguarding Rights Upon Returning to Work
While the enhanced maternity leave program offers valuable support, returning mothers might face another challenge: racism. Here’s a breakdown of this important concern:
Potential Forms of Discrimination:
Disapproving Maternity Leave Claims: The above situation may arouse disapproval from employers when employees take up maternity leave.
Reduced Dedication Assumptions: It is possible that the suitability of women is reduced because of motherhood.
Lack of Flexibility: It might be easy for employers to deny mothers who come back from leave the opportunity to work flexible hours.
Replacement Preference: This may be the case hence the employer may be biased to the temporary replacement that took the position during the maternity.
Legal Protection:
Hong Kong laws prohibit discrimination against the sex, pregnancy, and family characteristics. This means:
Equal Treatment: Employers are not allowed to discriminate against mothers account of the time they were away for maternity leave.
Types of Discrimination: The law is in place to prevent discrimination in its various forms such as:
- Termination
- Detrimental treatment
- Denial of opportunities
Direct vs Indirect Discrimination: Disallowing mothers from working but allowing employees with other characteristics to do so is a form of discrimination and is illegal.
Case Examples:
Lam Wing Lai vs Y. T. Cheng (Chingtai) Limited (2005): This case provides an example of how it can be perceived that the dismissal is made on the grounds of pregnancy complications and maternity leave.
Chun Sau Ching v Cheung Hung Aluminum Window Decoration Works Ltd (2020): This case provides an example of a positive legal outcome regarding a woman who was forced to leave her job after she revealed her pregnancy.
Importance of Awareness:
Ladies who have to return to work after maternity leave should also know that discrimination on the grounds of motherhood or taking maternity leave is illegal.
Seeking Help:
Discrimination cases can be difficult to traverse. If you think discrimination has occurred you should consult your lawyer or seek advice from the Equal Opportunities Commission (EOC).
Empowering Returning Mothers:
This awareness empowers returning mothers to know that they have rights and can easily seek help to facilitate their re-entry to work.
How FastLane Group Can Help?
Ensure your business complies with Hong Kong’s maternity leave regulations. Partner with FastLane Group for expert guidance on employment laws and HR payroll practices to support working mothers. Contact us today for a consultation!