China (PRC)

Lesli Ligorner and Mitchell Mosvick of Paul Hastings shine a light on the steps taken by the Chinese government to improve the lives of working mothers. Extended maternity leave benefits, greater protections for new mothers and additional entitlements based on individual circumstances have paved the way for a more balanced lifestyle and a significant move in the right direction in terms of social progress. And this could just be the tip of the iceberg….

In a move towards providing greater benefits to working women and signaling social progress, the People’s Republic of China recently announced Draft Regulations that will increase the amount of paid maternity leave that employers must provide to most female workers having children. Most women who take maternity leave after the law passes will be entitled to take an additional eight days of leave time, and perhaps more for certain conditions and under certain circumstances. Given that the PRC National Bureau of Statistics’ data shows that at least 45% of the Chinese workforce is made up of female employees, the number of people who stand to gain from this new, national-level law is significant, and this may be one of the most noteworthy new laws affecting PRC families in 2012.

These new regulations proposing expanded maternity leave benefits are in draft form, and the comment period for the public to submit comments on them to the Legislative Affairs Office of the State Council ends on December 23, 2011. Nonetheless, it is expected that the regulations will go into effect sometime early in 2012 roughly in their current form.

When there are complications….
The Draft Regulations provide that employers must give female employees paid maternity leave benefits of at least 14 weeks. This adds a full eight days of extra maternity leave time to that guaranteed under current law, which only mandates 90 days leave. For a complicated delivery, employees will receive an additional two weeks of maternity leave, a net loss of 1 day under current national regulations. Employees who give birth to multiple babies in one delivery (i.e., twins) will be entitled to an additional two weeks’ maternity leave for each additional birth, also a net loss of 1 day.  Further, employees who experience early termination of their pregnancies (including an induced abortion) within the first four months of pregnancy will be entitled to a minimum of two weeks of leave. Employees who have an early termination of pregnancy (including an induced abortion) at or after the fourth month of pregnancy will be entitled to a minimum of six weeks of leave.

The new regulations are intended in part to reflect social progress in the PRC, using public policy to protect female employees further by adding expanded benefits and protections. The regulations also bring the PRC more in line with international standards, specifically the International Labour Organization’s leave standards, which provides for the measurement of maternity leave entitlements in terms of weeks instead of days. Besides adding extra days of maternity leave, the proposed regulations recognize that not all reasons for maternity leave are the same (as with complicated births), and the regulations also add more teeth to enforcement efforts. If the regulations are implemented in their current form, if an employer fails to make the mandatory maternity insurance contributions, the employer must bear all of the expenses related to childbirth by its female employees. The hope is that this potentially large penalty should significantly reduce compliance problems.

Helping dad out too?
The new protections are expected to improve the lives of working women in China by ensuring that they can enjoy a longer period of maternity leave and that non-compliant employers – and not unenrolled employees – will bear the costs through stronger penalties for their recalcitrance. Yet, men could also benefit from the new law, despite the fact that the new regulations do not provide them with mandated paternity leave benefits—as many had hoped when the regulations were debated earlier this year. Rather, men with working spouses will benefit indirectly through the extra time given to their spouses (and thereby to the couple) to assist with care giving at the beginning of a new child’s life.

Room for improvement?
Furthermore, these new legal changes at the national level may be just the beginning for more sweeping changes that may take place at the local level. It is important to realize that the national standards only set a “floor” for mandatory maternity benefits, and the statement of policy in the Draft Regulations makes it clear that the PRC is encouraging local jurisdictions to provide enhanced protections for working women beyond the national standards. Municipalities, provinces, and autonomous regions often enhance benefits provided by national law by issuing their own local implementing regulations, and that will likely happen with respect to maternity benefits as well. Examples of such enhancements may include providing more days of paid maternity leave or higher pay while on leave.
For example, currently some local cities provide for additional leave time in the event of a “late birth.” A late birth is generally defined as when a woman gives birth after she has attained the age of 23 (in Guangzhou) or 24 (as in Shanghai and Beijing). The national law (including the Regulations on Protection of Female Employees on which the Draft Regulations were based) has never provided for additional time off for late births, leaving this issue to the discretion of local governments. The three cities of Guangzhou, Shanghai and Beijing have taken it upon themselves to add expanded benefits for working mothers who are older when they have a child. Thus, Shanghai and Beijing both mandate an additional 30 days of paid leave for female employees having late births, while Guangzhou requires employers to grant an additional 15 days of paid leave.

By recognizing the unique needs of working mothers through its attention to this issue, the PRC has moved public policy in China towards providing greater protections for them. This will likely encourage local jurisdictions in the PRC to bestow additional protections and benefits above the current national requirements on their constituents.

As Premier Wen Jiabao said on 27 November 2011, “the social status of the female population indicates the level of social progress (of a nation), while children are the future and hope of a nationality and a nation.”

lesliligorner@paulhastings.com
mitchellmosvick@paulhastings.com
www.paulhastings.com

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