Answer: Most types of female employees, including those on irregular or general work hours and full-time standard hours system, are entitled to the same protection for female workers, including special protection for female workers, prenatal examination, maternity leave, and expenses related to childbirth.
Article 6 of Special Provisions on Labor Protection for Female Employees provides that pregnant female worker¡¯s antenatal examination time is deemed to be work hours. Therefore, Employers should agree to the female employee’s request for reasonable leave for prenatal examination, including routine prenatal examinations arranged by medical institutions and additional prenatal examinations because the employee feels unwell, and pay the employees normal wages during the prenatal examinations.
According to the Special Provisions on Labor Protection for Female Employees, a female employee is entitled to 98 days of paid maternity leave, including 15 days of prenatal leave; in case of dystocia, the maternity leave is increased by 15 days (but 30 days are added in Guangdong Province, including Shenzhen City); in case of multiple births, the maternity leave is increased by 15 days for each additional baby. For example, if a female employee in Shenzhen has a dystocia and has triplets, the employee is entitled to 158 days of paid maternity leave (98 + 30 + 2 * 15). The definition of dystocia is generally based on hospital discharge records. At present, some court decisions considered cesarean section and the use of fetal aspiration dystocia, 1Hunan Runzhi Jinfu Information Technology Co., Ltd., Xiao Jing Labor Dispute Civil Judgment of Second Instance Civil Judgment of Changsha Intermediate People’s Court of Hunan Province (2021) Xiang 01 Min Zhong 10659 No. Civil Judgment of Second Instance of Labor Dispute between Shenzhen Sanlida Electrical Appliance Technology Co., Ltd. and Zhao Genhui Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2019) Guangdong 03 Minzhong 28210 No., Civil Judgment of First Instance of Labor Dispute between Changle Aijie Stomatological Hospital and Guo Fengjuan Civil Judgment of People’s Court of Changle County, Shandong Province (2020) Lu 0725 Min Chu No.1904.and lateral incision is not necessarily recognized as dystocia.2Civil Judgment of Second Instance of Labor Dispute Case between Chen Xinzhu and Liaoning Tianhao Drinks Co., Ltd. Civil Judgment of Shenyang Intermediate People’s Court of Liaoning Province (2019) Liao 01 Min Zhong No.2373.
According to the aforementioned Provisions, a female employee who miscarries in less than four months of pregnancy is entitled to 15 days of paid maternity leave; a female employee who miscarries in more than four months of pregnancy is entitled to 42 days of paid maternity leave.
The maternity leave pay rate for a female employee is an individual wage that equal to the average from the 12 months of wages before her maternity leave. For an employee under maternity insurance, the Maternity Insurance Fund shall pay maternity allowance at the average monthly wage of all employees of the employer in the previous year. The shortfall between the maternity allowance and individual wage shall be compensated to the employee by the employer; 3Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Yangliu and Huatai Innovation Asset Management (Tianjin) Co., Ltd. Civil Ruling of Beijing High Court (2021) Jing Min Shen No.5071.the excess the employee receives shall be paid to the employer. However, if the employer is in a state of shutdown, the maternity leave pay of the employee shall be calculated according to the standard of shutdown wage.4Civil Judgment on Labor Dispute Retrial of Wu Mou-mou and Xiamen Cele Industrial Co., Ltd. Civil Judgment of Fujian Provincial People¡¯s High Court (2019) Min Min Zai No.312.
The cost of prenatal examination and medical expenses for childbirth shall be borne by the Social Insurance Bureau, but if the employer has not purchased maternity insurance for its employees, these expenses shall be borne by the employer.5The second paragraph of Article 8 of the Special Provisions on Labor Protection for Female Employees stipulates: ¡°the medical expenses for childbirth or abortion of female workers shall be paid from the maternity insurance fund for those who have already participated in maternity insurance in accordance with the items and standards stipulated in the maternity insurance, and shall be paid by the employer for those who have not participated in maternity insurance.¡±Some regions have stipulated a one-off nutritional allowance for childbirth. It should also be implemented in accordance with the aforementioned principle that an employer who fails to purchase maternity insurance is substitute responsible for all maternity entitlements.6Article 17 of the Provisions of Guangdong Province on Maternity Insurance for Employees: One-off Nutrition Allowance for Childbirth.
Article 9 of the Special Provisions on Labor Protection for Female Employees stipulates that employers shall not arrange overtime work or night shifts for female workers who are breast-feeding infants under one year of age. Employers should arrange 1 hour of lactation time for breastfeeding female employees during each day¡¯s work hours, and female employees who give birth to multiple children shall be granted an additional one-hour lactation time for each additional child. Lactation time is considered paid work hours.
In principle, an female pregnant employees on casual hours should be given the same special protection for female employees, including paid prenatal examination, one hour of breast-feeding, rest between work, etc. However, since her employer is not obligated to contribute to maternity insurance for the employee (only to work injury insurance), the employer does not need to provide maternity leave benefits for the employee.
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- 1Hunan Runzhi Jinfu Information Technology Co., Ltd., Xiao Jing Labor Dispute Civil Judgment of Second Instance Civil Judgment of Changsha Intermediate People’s Court of Hunan Province (2021) Xiang 01 Min Zhong 10659 No. Civil Judgment of Second Instance of Labor Dispute between Shenzhen Sanlida Electrical Appliance Technology Co., Ltd. and Zhao Genhui Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2019) Guangdong 03 Minzhong 28210 No., Civil Judgment of First Instance of Labor Dispute between Changle Aijie Stomatological Hospital and Guo Fengjuan Civil Judgment of People’s Court of Changle County, Shandong Province (2020) Lu 0725 Min Chu No.1904.
- 2Civil Judgment of Second Instance of Labor Dispute Case between Chen Xinzhu and Liaoning Tianhao Drinks Co., Ltd. Civil Judgment of Shenyang Intermediate People’s Court of Liaoning Province (2019) Liao 01 Min Zhong No.2373.
- 3Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Yangliu and Huatai Innovation Asset Management (Tianjin) Co., Ltd. Civil Ruling of Beijing High Court (2021) Jing Min Shen No.5071.
- 4Civil Judgment on Labor Dispute Retrial of Wu Mou-mou and Xiamen Cele Industrial Co., Ltd. Civil Judgment of Fujian Provincial People¡¯s High Court (2019) Min Min Zai No.312.
- 5The second paragraph of Article 8 of the Special Provisions on Labor Protection for Female Employees stipulates: ¡°the medical expenses for childbirth or abortion of female workers shall be paid from the maternity insurance fund for those who have already participated in maternity insurance in accordance with the items and standards stipulated in the maternity insurance, and shall be paid by the employer for those who have not participated in maternity insurance.¡±
- 6Article 17 of the Provisions of Guangdong Province on Maternity Insurance for Employees: One-off Nutrition Allowance for Childbirth.