China’s labour law framework provides special protection to female employees in many ways. Among those, maternity leave is of particular importance.
Maternity leave is a statutory leave defined by Article 61 of PRC Labor Law and Article 7 of Special Provisions on Labor Protection of Female Employees. In other words, it is a statutory right for female employees to take the applicable days of leave.
Although the relevant articles of law effectively define the applicable number of days, individual situations are always different, and questions often arise on a case by case basis when people need to calculate their own maternity leave. We decided to ask our labour lawyers to answer a few of the most common maternity leave questions, and we summarized their answers below for your reference.
Q: How long is my maternity leave?
A: Female employees shall be entitled to a 98-day maternity leave. In addition, if female employees give birth to a child pursuant to relevant family planning policies, according to regulations in Shanghai, they are entitled to an additional 30-day leave. (The specific number of additional days shall be determined according to local regulations.) Hence, the total days of maternity leave under these conditions in Shanghai is 128 days.
Q: When can I take the maternity leave?
A: 15 days of the 98-day maternity leave may be taken before the delivery at the earliest. At the latest, the maternity leave may be started upon delivery.
Q: How should I calculate maternity leave if there are statutory holidays during the leave period?
A: The 98-day of maternity leave includes statutory holidays, while the prolonged 30-day leave excludes statutory holidays. That is, the prolonged 30-day leave shall be extended to account for statutory holidays during its term. So, for example, if the additional maternity leave is taken from 30th September 2020, because of the statutory 4 holidays from 1st October to 4th October (1 for Mid-Autumn Festival and 3 for National Day), the 30-day maternity leave would be extended to 2nd November.
Q: Can I still take maternity leave if I suffer a miscarriage?
A: Female employees who suffer a miscarriage within 4 months of the pregnancy shall be entitled to a 15-day maternity leave in total. Those who suffer a miscarriage after 4 months of pregnancy shall be entitled to a 42-day maternity leave in total.
Q: Can I ask for more leave days if I suffer dystocia?
A: Another 15 days leave shall be granted for female employees who experience dystocia. In case of multiple births, an additional 15 days maternity leave shall apply for each additional infant. If such events occur at the same time, an additional 15 days could be added for each condition. (E.g. For delivery of twins with a caesarean operation, 15 days for caesarean + 15 days for the additional birth will be added).
Q: Can my husband take any leave to accompany me?
A: In Shanghai, male employees satisfying relevant family planning policies, as well as relevant laws and regulations, are entitled to a 10-day paternity leave. Specific days of paternity leave shall be calculated in accordance with local regulations.
Paternity leave shall be taken all at once during the period of maternity leave of the female employee and shall be extended to account for statutory holidays just as with maternity leave above.
Da Wo Law Firm is devoted to protecting the rights and interests of female employees. If you have any specific questions, please do not hesitate to contact us.
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