Hong Kong | Statutory maternity leave measures

Written on 4 Feb 2020

The Employment (Amendment) Bill 2019 was published in the Hong Kong Government Gazette on 27 December 2019. The aim of the Bill is to enhance maternity leave protection and benefits, and it was published following consultations in late 2018 which obtained broad support.

The relevant legislation is set out in the Employment Ordinance Cap. 57 (EO), and the main changes to be effected by the Bill are as follows:

The length of the maternity leave. The EO currently provides that a female employee under a continuous contract (for not less than 40 weeks immediately before the commencement of the scheduled maternity leave) is entitled to 10 weeks of maternity leave. The Bill will extend the period by an additional four weeks to a total of 14 weeks' maternity leave.

The payment for the maternity leave. At present, the EO provides that the maternity leave payment rate is calculated at four-fifths of the employee’s average daily wages. Under the Bill, this rate will continue to apply to the extended 4 weeks of the maternity leave, subject to a cap of HK$36,822 per employee. The additional payments for the extended four weeks will be funded by the government on a reimbursement basis. This means that the employer will have to pay the employee first, and then seek reimbursement from the government.

The definition of “miscarriage”. The existing threshold set in the EO for a miscarriage is at 28 weeks of pregnancy. The threshold will be lowered by the Bill to 24 weeks. The significance of this technical amendment is that a female employee will be entitled to maternity leave once she has passed 24 weeks of pregnancy.

The proof for sickness allowance. There is ambiguity in the EO that gives rise to confusion with regard to the medical certificates that are required for employees to qualify for sickness allowance. The Bill clarifies that female employees attending their pregnancy-related examinations will qualify for sickness allowance, where a certificate of attendance issued by medical professionals is as acceptable to serve as documentary proof as other medical certificates.

It is evident that the Bill seeks to provide pregnant employees with more protection and better remuneration. The financial burden to provide these benefits is to be jointly shared by employers and the government. The Labour Department will be responsible for implementing and enforcing the amendments to the EO.

The Bill was introduced into the Legislative Council on 8 January 2020. Due to political paralysis in the Legislative Council arising from recent events in Hong Kong, and on the basis of the broad support for the Bill, the Secretary for Labour and Welfare has proposed a fast-track process. This would bypass the House Committee (which has yet to be constituted due to political manoeuvring) so that the Bill is instead reviewed by the Legislative Council Panel on Manpower.

This proposal is being considered by the political parties, but many questions remain on whether the Bill can make it through the current impasse in the Legislative Council.