Hong Kong Maternity Leave Update - July 2020

By Pattie Walsh, Diana Purdy

07-2020

4 More Weeks - Bill Passed to Increase Statutory Maternity Leave to 14 Weeks in Hong Kong

On 9 July 2020, the Employment (Amendment) Bill 2019 (the "Bill") was passed by the Hong Kong Legislative Council.

Current Provisions on Maternity Leave

Under the Employment Ordinance (Cap. 57), a female employee who has been under a continuous contract (i.e. has been employed for at least four consecutive weeks and has worked at least 18 hours each week) immediately prior to the commencement of her maternity leave is entitled to 10 weeks of maternity leave.

In addition, if a female has been employed for 40 weeks or more immediately prior to the commencement of her maternity leave, then she is entitled to receive maternity leave pay at the rate of four-fifths of her daily average wages earned in the 12 months immediately before commencement of her maternity leave.

Amended Provisions on Maternity Leave

Extension of Leave Period

Under the Bill, the statutory maternity leave period is extended from 10 weeks to 14 weeks. For employees who are entitled to maternity leave pay, the initial 10 weeks will be paid by employers in accordance with the current arrangements. The additional 4 weeks of maternity leave will be funded by the Government.

Extension of Paid Leave

According to Government research, maternity leave pay in most jurisdictions is partially funded by social insurance. The period of maternity leave in most locations where employers have to bear the full cost of maternity leave pay is shorter than in locations where social insurance is provided. It was decided, therefore, that the Government should fund the additional 4 weeks of maternity leave pay. The Government was also of the view that, if employers were required to pay another 4 weeks of maternity leave pay, this would potentially cause women to lose employment opportunities.

It was originally proposed that maternity pay for the 4-week extended period should be capped at HK$36,822, being four-fifths of the wages of an employee with a monthly wage of HK$50,000 using the following formula:4/5 x HK$50,000 x 12 months / 365 x 28 days.However, it was argued by some legislators that this constituted discrimination against higher-paid employees. Based on Government research, 99% of female employees in Hong Kong earn up to HK$100,000 per month. The additional maternity leave pay has therefore been increased to a maximum of HK$80,000. This exceeds the statutory maternity leave entitlement for an employee earning HK$100,000 per month, which would be HK$73,644 using the above formula, and therefore will come as encouraging news for higher-income working mothers.

Employers will be required to pay the additional 4 weeks of maternity leave pay and then to claim a reimbursement from the Government in order to avoid any delay in payment to employees.

Amendment of Definition of "Miscarriage"

Under the Employment Ordinance, an employee who has a "miscarriage" after 28 weeks of pregnancy is entitled to maternity leave. Under the Bill, this period is reduced to 24 weeks.

Certificate of Attendance Sufficient for Sickness Allowance

Currently, a female employee who is absent from work to attend a medical examination in relation to her pregnancy is entitled to sickness allowance if she can provide a medical certificate from a registered medical practitioner. However, this does not cover certificates of attendance. The Bill provides that a certificate of attendance from a registered medical practitioner or a registered nurse or midwife is acceptable proof in respect of a claim for sickness allowance where an employee is attending a medical examination in relation to her pregnancy.

Effective Date

The Bill has not yet come into effect, but it is expected that the amendments will come into operation later this year.