The issues of low fertility rate and aging of the population are getting more and more serious in China. In response to that, the Chinese government released the child-birth control - as of 31 May 2021, each couple may give birth to 3 children. Accordingly, the PRC Population and Family Planning Law was amended and became effective as of 20 August 2021. According to the new law, in addition to rewarding extended maternity leave to female employees, local governments can provide parental leave for those couples who give birth to a child in compliance with the law. Further, the families which have only one child may be given necessary priority and care in the welfare of taking care of the elders.
Based on the new law, many local governments recently updated their regulations by granting employees with more leave for taking care of their families. Please find below the details.
Extension of Additional Maternity Leave
In China, the statutory maternity leave is 98 days. In addition to that, subject to the regulations of the local government, additional maternity leave is granted to female employees giving birth in compliance with the law. In the past, the duration of such addition maternity leave was usually 30 days to 90 days.
In 2021, many local governments have extended the additional maternity leave. For instance, in Shanghai and Beijing, the additional maternity leave is extended from 30 days to 60 days. In Zhejiang Province, the additional maternity leave for the first child is extended to 60 days and for the second and third child, the additional maternity leave is extended to 90 days. Currently, the total amount of maternity leave for a female employee including the statutory maternity leave and additional maternity leave in many locations ranges from 128 days to 158 days. And in a few locations, the maternity leave is much longer, for example, in Shaanxi Province, it is 350.5 days. During the maternity leave, a female employee does not work and enjoys maternity benefits according to the law.
Starting from the last quarter of 2021, many locations grant parental leave to those couples who give birth to a child in accordance with the law. I.e., if a couple gives birth to no more than 3 children, the husband and wife may respectively enjoy parental leave every year before their child reaches 3 years old. Subject to the decisions of the local governments, the parental leave ranges from 5 working days to 15 working days per year. For instance, it is 5 working days in Shanghai, 5 working days in Beijing and 10 working days in Zhejiang Province.
There are exceptional regulations in Chongqing and Jiangsu Province on parental leave. In Chongqing, a couple has two options of taking parental leave, that is, either the wife or the husband takes parental leave continuously until the child reaches 1 year old, or both the husband and the wife respectively takes parental leave 5 to 10 working days per year until the child reaches 6 years old. In Jiangsu Province, the parental leave is 5 working days which is not mandatory and only applicable to husbands and can be taken only during the maternity leave of his wife.
Most locations specify that the remunerations of the employees during parental leave shall be paid as normal, i.e., as if the employees work as usual. In Chongqing, if an employee chooses to take parental leave continuously until the child reaches 1 year old, he/she shall be paid at a standard of no less than 75% of his/her basic salary or statutory minimum wage in Chongqing, whichever is higher.
Parent Caring Leave
Since 2021, some locations such as Beijing, Tianjin, Zhejiang Province and Guangdong Province grant parent caring leave to employees when their parents need to be taken care of. But the granting terms and conditions at different locations are very different. They are usually subject to the age of the parents, whether they are inpatients or not, whether the employee is the only child of the family or not, etc. For example, in Beijing, the parent caring leave will only be granted to employees who are the only child of the family and with the duration of 10 working days at the maximum every year. In Tianjin, the parent caring leave will be granted to all employees as long as one of the parents with an age of over 60 years is in hospital. If the employee is the only child of the family, he/she can enjoy parent caring leave of up to 20 working days every year and if not, the employee can enjoy parent caring leave of up to 10 working days every year.
Before 2021 when the PRC Population and Family Planning Law was amended, some locations such as Sichuan Province and Fujian Province, already granted employees with parent caring leave. Similarly, most locations specify that the remunerations of the employees during the leave shall be paid as normal by the employer.
Additional issues to know for Employers
Most local regulations do not specifically provide for legal liabilities, if the employer fails to grant additional maternity leave, parental leave or parent caring leave to the employees. However, according to the Regulations on Labor Security Supervision, the employee is entitled to raise complaints at the competent labor administrative department, if his/her legal rights and interests have been infringed. Therefore, to be fully in compliance with the law, the employers may wish to follow the regulations if the local government at the place has relevant provisions on additional maternity leave, parental leave or parent caring leave. However, currently the regulations on parental leave and parent caring leave are very general - only very few cities or provinces such as Zhejiang Province have issued supporting policies or detailed explanations. Many important questions such as “should the days of parental leave be added up if an employee has more than one child under 3 years old?”, “can companies arrange the parental leave for the employees according to business and operation needs?”, “how should an employee prove that he/she is an only child?” are not specified by local regulations yet. Thus, in order to provide clear guidelines, companies may consider formulating their own internal policies on these issues.