- 1. Statutory Maternity Leave
- 2. Maternity Leave Pay
- 3. Statutory Paternity Leave
- Key Takeaways
- Frequently Asked Questions
The Employment (Amendment) Ordinance 2020 (the “Amendment”) has come into operation from today, 11 December 2020. Our previous update on its details can be viewed here.
A summary of the key provisions and the key takeaways from the Amendment are as follows:
1. Statutory Maternity Leave
The period of statutory maternity leave is increased to a continuous period of 14 weeks (from 10 weeks) for female employees whose date of confinement is on or after 11 December 2020 (the “Amendment Date”). As a result, even if an employee had given notice of her pregnancy prior to the Amendment Date but her actual confinement (i.e. date of delivery of the child) occurs on or after the Amendment Date, her entitlement to statutory maternity leave is increased to 14 weeks.
2. Maternity Leave Pay
The additional 4 weeks’ maternity leave pay (“MLP”) is calculated at the rate of four-fifths of the employee’s daily average wages even in respect of the additional 4-week period capped at HK$80,000 per employee. Once the employer pays the MLP for the 14 weeks, the employer may apply for reimbursement from the Government under the Reimbursement of the Maternity Leave Pay Scheme (the “RMLP Scheme”) in respect of the MLP for the 11th to 14th weeks (i.e. the additional 4-week period). In order to apply under the RMLP Scheme, employers are expected to maintain records in accordance with the Employment Ordinance including:
- Employers’ payment records such as salary slips, bank transaction records for the payment of 14 weeks’ statutory MLP;
- The pregnant employee’s wage records of the 12 months preceding the commencement of maternity leave as this is relevant for calculating the daily average wage; and
- Proof of pregnancy provided by concerned employees to the employers (such as medical certificates specifying the expected dates of confinement, medical certificates, or certificates of attendance for medical examinations in relation to pregnancy).
The Labour Department is working towards implementing an online portal for the submission of the application under the RMLP Scheme. Complete details of the implementation of the RMLP Scheme are expected in the first half of 2021.
3. Statutory Paternity Leave
The period in which a male employee is able to take paternity leave has increased from a 10-week period to a 14-week period. Accordingly, statutory paternity leave (of 5 days) can be taken anytime during the period beginning 4 weeks before the expected date of delivery and ending 14 weeks from the actual date of delivery if the child is born on or after the Amendment Date.
Key Takeaways
Employers should consider reviewing their employment contracts and employment policies to ensure that any relevant provisions do not contravene the statutory requirements. Human Resource teams (“HR”) should keep abreast of the changes and the applicability of the Amendment. It is important that HR and accounts teams maintain records for applications for reimbursement of MLP for the additional period of maternity leave under the RMLP Scheme.
For further information in relation to maternity leave, paternity leave and other employment law related matters, please do not hesitate to contact Nick Gall (nickgall@gallhk.com / +852 3405 7688).
Frequently Asked Questions
How many days do fathers get for paternity leave?
A male employee is entitled to 5 days’ (whether consecutive or not) paternity leave during the period beginning 4 weeks before the expected date of confinement of his spouse/partner and ending 14 weeks from the actual date of delivery, provided he is the father of a new-born child (or a father-to-be), has been employed under a continuous contract, and has given the required notification to the employer.
How much paternity pay do fathers get?
The daily rate of paternity leave pay is a sum equivalent to four-fifths of the average daily wages earned by an employee in the 12-month period preceding the paternity leave. If an employee is employed for less than 12 months, the calculation is based on such shorter period. In order to be eligible for paternity leave pay, the employee must be employed under a continuous contract for not less than 40 weeks immediately before the paternity leave and provide documentary evidence of paternity.
What proof is needed for paternity leave?
Other than prior notification requirements, there is no documentary evidence required for taking of paternity leave. However, if the employer so requests, the employee must provide his employer with a written statement signed by him stating the name of the child’s mother, the expected/actual date of delivery of the child, and that he is the child’s father.
However, to be eligible for paternity leave pay, documentary evidence is required. The employee will need to provide the birth certificate of the child issued under the Births and Deaths Registration Ordinance (Cap. 174) if the child is born in Hong Kong (or relevant authority outside Hong Kong if the child is born elsewhere) and on which the employee’s name is entered as the child’s father.
Can employers refuse paternity leave?
An employer cannot refuse to grant paternity leave if the employee is eligible whether statutorily or contractually.
Do self-employed people get paternity pay?
Only employees engaged under a contract of employment would be entitled to the rights and benefits provided under the Employment Ordinance. Therefore, for self-employed persons or independent contractors to be entitled to receive paternity pay this would need to be expressly included as a contractual right under their terms of engagement.
All material contained in this article are provided for general information purposes only and should not be construed as legal, accounting, financial or tax advice or opinion on any specific facts or circumstances and should not be relied upon in that regard. Gall accepts no responsibility for any loss or damage arising directly or indirectly from action taken, or not taken, which may arise from reliance on information contained in this article. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have.
