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PRC Labour Law - Bitesize: How many days maternity leave is a female employee entitled to in China?

5 January 2010
Mayer Brown JSM Newsletter

How many days maternity leave is a female employee entitled to in China?

A female employee is entitled to 90 days of maternity leave in total. This includes 15 days of leave prior to the anticipated date of birth. An additional 15 days of maternity leave will be granted in the event that the female employee experiences a difficult childbirth or gives birth to more than one child in a single birth. More days of maternity leave may be provided under relevant local rules.

How about the female employees’ entitlement to late maternity leave?

When a married female employee gives birth to her first baby at the age of 24 or older, or gets pregnant after she has married at the age of 23 or older (as per the local rules), the female employee will be entitled to certain additional days (which are generally 30 days, depending on local rules) of “late” maternity leave.

How to calculate the employee’s salary during the maternity leave and the late maternity leave?

Female employees shall be paid their normal salary during their maternity leave and late maternity leave. No salary deduction should be made.

However, as long as the employer has contributed to the mandatory maternity insurance, the female employees’ salary during the maternity leave and the late maternity leave will be paid by the maternity insurance fund.

If a female employee gives birth to a second child and has violated the family planning policy in the PRC, is she still entitled to maternity leave and late maternity leave?

PRC law is not clear in this aspect. Generally speaking, such a female employee will be entitled to maternity leave, but she will not be entitled to late maternity leave. With respect to the salary during the maternity leave, as the maternity insurance fund will not pay the maternity salary to a female employee who has violated the family planning policy, it is therefore arguable whether or not the employer should pay normal salary to this employee. We suggest that the employer should make this clear in the relevant staff policy to avoid any dispute in this aspect.

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