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PRC Labour Law - Bitesize

11 September 2013
Mayer Brown JSM Newsletter

Leave (Cont'd)

How many days of bereavement leave is an employee entitled to in the PRC?

The law on bereavement leave in the PRC is governed by an old national regulation which came into effect in 1980. This regulation provides that where an employee's direct relative (i.e., parent, spouse, or child) dies, such employee is entitled to between one and three days of bereavement leave (depending on the particular circumstances), with full pay. In addition, where the death of the employee's direct relative has occurred in a different city, the employee may, subject to the approval of the employer, also be entitled to a certain number of additional days for travelling time.

However, please note that the above regulation is expressed to apply to state-owned companies only. That said, in practice, the local labour authority may extend its application to non-stated-owned companies (e.g., foreign-invested or privately-owned companies). This is because, when the above regulation was issued, only one type of enterprise (i.e., state-owned companies) was recognised by PRC law and so there was no need to mention the other forms of company that exist today. Therefore, an employer should check with the local labour authority for its approach.

For example, in Shanghai, the local rules provide that bereavement leave is also granted when an employee's parent-in-law dies and the employer may pay the employee at the standard of 70 percent of normal pay in the absence of express agreement in the labour contract.

It is good practice for an employer to include details relating to bereavement leave entitlement in its relevant internal rules and policies.

How many days of paternity leave is an employee entitled to in the PRC?

When an employee's wife gives birth to her first child, provided she is aged 24 or older (or became pregnant when aged over 23 – depending on local rules), then paternity leave must be granted to such employee. The number of paternity leave days varies from region to region depending on local rules, but generally ranges from 3 to 30 days.

What is "visitation leave"?

"Visitation leave" is provided for under regulations issued by the State Council in 1981. It is a paid leave entitlement granted to any employee who:

  • is working in a government organisation or state-owned enterprise (see below for details relating to foreign-invested companies);
  • has worked for more than 1 year for that employer;
  • does not live with his or her spouse or parents in the same city; and
  • cannot visit his or her spouse or parents during public holidays and rest days.

If the employee is to visit his or her spouse, such employee is entitled to 30 days of spouse visitation leave once a year. With respect to parental visitation leave, unmarried employees are entitled to 20 days per year (or 45 days every two years) while married employees are entitled to 20 days every four years.

As with the bereavement leave entitlement, the law is unclear as to whether an employee of a non-state-owned company is entitled to visitation leave. Again, the employer may need to check with the local labour authority as to the local practice on this point. Including the details of such provisions regarding home visitation leave entitlement in the relevant internal rules and policies is always good practice.

Can I offset the legally required visitation leave with paid annual leave?

Provided that employees are given visitation leave under the internal rules and policies, the employer is advised not to offset such accrued leave against statutory annual leave since each of these entitlements serves a different function. However, it is generally acceptable to offset visitation leave against any additional contractual annual leave if your policy expressly provides for this.

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