New legislation on maternity protection for Chinese female workers Go back »

2012-03-29 | Nanjing

Step by step, China strengths its policies and regulations on improving the employee benefits in many respects. On November 21, 2011, the Legislative Affairs Office of the State Council again issued a notice of a draft regulation open to comments, in order to solicit reviewing opinions. This, titled the Special Labor Protection Regulations for Female Employees (hereinafter referred to the Draft Regulation), could be deemed as another effort to improve maternity insurance system.

The Draft Regulations are expected to take place of the Regulations Concerning the Labor Protection of Female Staff and Workers, issued on July 21st, 1988. The new coming ones look to bringing exact changes to the current laws and regulations, especially in respect of prolonged maternity leave and a more detailed scope of works prohibited for female employees.

Maternity Leave Prolonged

The Draft Regulations focus on reinforce protections to female employees before and after childbirth. The most featured point is extending the maternity leave from 90 days to 14 weeks, two weeks of which may be enjoyed before delivery. And those also set courtesy rules referring to a complicated delivery, one delivery with multiple babies and an early termination (see Art 7 and 8 of the Draft Regulations).

However, some indicates that this is only a word game, using different counting units (‘week’ replaces ‘day’) to describe almost the same amount of leave days. Anyway, this is the first time that regulations at national level lay down female benefit rules so exactly.

In addition, workers who suffer a termination of pregnancy (including abortion) within four months from conception, will be entitled to a period of two weeks leave. The workers which have undergone a pregnancy termination (including an induced abortion) after the fourth month of pregnancy, will be entitled to a minimum of six weeks leave.

Local Law Enforcement

Although the new legislation takes effect at the national level, provincial regulations, issued by some local municipality over the past years, have effectiveness as they are not in conflict with the national law.
Special regulations have been issued by the municipalities of Beijing, Shanghai and Guangzhou.
The main differences are found in the duration of leave for childbirth and complicated births, where, for example, Guangzhou set a longer leave period than 15 or 30 days, both in case of abortion, and in cases of delayed parturition, where national laws is silent.
The general rule provides that in case of conflict between national legislation and local legislation, the one which includes provisions more favorable to the worker shall prevail.

Detailed Scope of Works Prohibited for Female Employees

Besides the main regulations for female employees after 7 months pregnancy or in lactation that not allowed on night work, an enclosed attachment clarifies work scope prohibited for female employees in different situations, classified as 1) under any circumstances; 2) in menstruation; 3) in pregnancy; 4) in lactation.

In each situation, it also sets items, comparatively more specific and wider than before. For example, for female employees in menstruation, the Draft Regulations specify that they are not allowed to work in cold water and under low temperature respectively above the second classification.

Punishment Clause

Art 13 of the Draft Regulations sets the punishment clause in the pursuit of practical execution. Unlike the rough clauses before, it sets fine to the law-disobeying employees as from RMB 1,000 to RMB 5,000 per right-infringed female employee and the direct responsible person shall be administratively sanctioned.

It’s easy to tell that the Draft Regulations are featured in detailed and deliberated rules, however, some scholars and even a few of female employees reasonably worries that higher standard of protection would cause contrary effects. Because, supervised under these new regulations, employers could become more reluctant to use female staffs, gender social problem would become tougher. After all, at least, it’s positively believed that these changes have to be made sooner or later, without any doubt.

This publication is for information only and does not represent a legal opinion.

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