The Employment (Amendment) Bill 2019 (“Bill”) has been passed by the Legislative Council on 9 July 2020. The purpose of the Bill is to amend the Employment Ordinance (Cap. 57) (“EO”) “to extend the statutory maternity leave by 4 weeks; to introduce a cap on the maternity leave pay in respect of the extension of maternity leave; to shorten the period of pregnancy mentioned in the definition of miscarriage; to allow a certificate of attendance to be accepted as proof in respect of entitlement to sickness allowance for a day on which a female employee attends a medical examination in relation to her pregnancy; and to provide for transitional and related matters.”
- What is the effect of the amendment on the duration of the statutory maternity leave?
At present, a female (pregnant) employee employed under a continuous contract immediately before taking maternity leave, shall be entitled to 10 weeks of maternity leave.Once the amendment comes into force, the entitlement to maternity leave will increase from 10 weeks to 14 weeks. The pregnant employee will continue to be entitled to a further period, not exceeding 4 weeks, on grounds of illness or disability arising out of the pregnancy or confinement.
- Are there any changes to maternity leave pay and if so, what are these?
The rate of maternity leave pay will continue to be the same. Currently, pregnant employees who have been employed for a continuous period of minimum 40 weeks immediately before the commencement of the maternity leave, shall be entitled to maternity leave pay at a daily rate of four-fifths of the daily average wages.
The payment in respect of the additional 4 weeks of maternity leave will also be calculated at same rate but subject to a cap of HK$80,000 per employee. The Government has committed to reimburse employers for additional maternity leave payment for these 4 weeks. The details of the administrative scheme for the reimbursement are yet to be published.
- What is the impact of the change in the definition of miscarriage?
The period of pregnancy mentioned in the definition of "miscarriage" will be shortened from 28 weeks to 24 weeks. Thus, a female employee who suffers a miscarriage at or after 24 weeks of pregnancy will be entitled to maternity leave (provided that other conditions are met).
- Are there any changes brought about with respect to proof of entitlement to sickness allowance?
Under the present law, a pregnant employee is entitled to claim sickness allowance for attending ante-natal medical examination only upon presenting a medical certificate issued by a registered medical practitioner or a registered Chinese medical practitioner.
Once the amendment comes into effect, a pregnant employee will be able to claim sickness allowance if she is able to produce a certificate of attendance from a professionally trained person such as a registered medical practitioner, registered Chinese medical practitioner, registered mid-wife or registered nurse.
- What are the changes with respect to paternity leave entitlement?
Eligible employees are entitled to take paternity leave of 5 days anytime during the period commencing 4 weeks before the expected date of delivery of the child and 14 weeks after the actual date of delivery of the child.
- What other changes should employers and employees be aware of?
Schedule 10 has been introduced for ease of transition into the amended law which provides as follows:
- Confinement on or after the amendments come into operation: If a female employee (1) gives notice of pregnancy and (2) intends to take maternity leave before the date when the amendment comes into operation (“Amendment Date”) but her confinement occurs on or after the Amendment Date, she would be entitled to the enhanced maternity leave and maternity leave pay in accordance with the amended provisions.
- Paternity leave: If an eligible male employee’s child is born on or after the Amendment Date, the amended laws would be applicable with respect to his paternity leave entitlements irrespective of the notification to take paternity leave being given at an earlier date.
- Effect on termination of employment: If the confinement of a pregnant employee, occurs on or after the Amendment Date, and the termination date of her employment contract falls on or after the Amendment Date, the employer shall be liable to pay to the employee maternity leave pay for 14 weeks.
- When will the amendments be brought into force?
The amendments will come into operation on a day to be appointed by the Secretary for Labour and Welfare by notice published in the Gazette. It is expected that the amendments would be in force by the end of 2020.
Employers should review their maternity and paternity leave policies to ensure they comply with the amendments to the law. Given the various changes to employment rights over the past 12 months, employers may wish to seek professional advice to ensure that their policies and handbooks are up to date.
All material contained in this note 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 note. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have.