Answer: You are entitled to paid paternity leave from your employer when your wife gives birth. The number of days of paternity leave varies from place to place, for example, 15 days in Guangdong and Shandong provinces, and 20 days in Hunan and Sichuan provinces.
The law does not clearly stipulate whether employees who do not take their entitled paternity leave should be compensated for the unused paternity leave as unused annual leave pay. This is a legal issue that varies in different courts in different places. The Guangzhou Intermediate Court has a case in 2021 ordering employers to pay employees’ unused paternity leave pay,1Zeng Xianyu, Guangdong Haosheng Chaofeng Garments Co., Ltd. Labor Dispute Civil Judgment of Second Instance Civil Judgment of Guangzhou Intermediate People’s Court of Guangdong Province (2021) Yue 01 Min Zhong No.18784 (The court held that the pay for the employee who did not take paternity leave was calculated according to the normal wages based on the actual number of days of paternity leave not taken).but Guangdong Provincial High Court, Beijing, Shanghai, and other courts have cases that do not support unused paternity leave pay.2Zhong Youhong and Shenlan Technology (Shanghai) Co., Ltd. Employment contract Dispute Civil Case of Second Instance Civil Judgment Shanghai First Intermediate People’s Court Civil Judgment (2021) Hu 01 Min Zhong 10197 No., Yang Shouan, Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Dongjiang Mould (Shenzhen) Co., Ltd. Civil Ruling of Guangdong Provincial People¡¯s High Court (2020) No.5442. ¡°The law does not explicitly stipulate that in the case that workers have not taken or partially taken paternity leave, employers is obligated to unused paternity leave pay¡±. Ma Huijie and Beijing Daxing District Maternal and Child Health and Family Planning Service Center Labor Dispute Second Instance Civil Judgment Beijing Second Intermediate People’s Court Civil Judgment (2021) Jing 02 Min Zhong No.7662 (the court held that the employer had paid the monthly wage in full and did not need to pay the unused paternity leave pay separately). Civil Judgment of the Second Instance of Personnel Dispute between Han Shimin and Shenzhen Huacai Optoelectronics Co., Ltd. Civil Judgment of the Intermediate People’s Court of Shenzhen City, Guangdong Province (2020) Yue 03 Min Zhong No.4413 (the law does not stipulate that unused paternity leave must be compensated). Civil Judgment of First Instance on Employment contract Dispute between Wu Fei and Suzhou Aoteming Pharmaceutical Technology Co., Ltd. Civil Judgment of the People’s Court of Suzhou Industrial Park, Jiangsu Province (2021) Su 0591 Minchu 14924. Some judgments in Beijing, Shenzhen City of Guangdong Province, and Changsha City of Hunan Province hold that employer causing unuse of paternity leave is a prerequisite for the obligation of unused paternity leave pay, that is, if an employee does not request a maternity leave, the employer is not liable to pay unused paternity leave pay.3Zhang Xin and Hunan Lanqiao Human Resources Group Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Changsha Intermediate People’s Court of Hunan Province (2021) Hunan 01 Minzhong No.12018. ¡°Zhang Xin did not submit evidence to prove that the number of days he did not take paternity leave was caused by Lanqiao Company. Therefore, there is no factual and legal basis for Zhang Xin’s request for Lanqiao Company to pay wages for the number of days of untaken paternity leave, and the Court does not support the claim.¡± Labor Dispute between Dai Yinping and Shenzhen Chuangxiang Architectural Decoration Engineering Co., Ltd. Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2021) Yue 03 Minzhong No.18348 (In this case, the employee did not apply for the paternity leave, the company only paid normal wages, and the court found that the employee could not get unused paternity leave pay because he failed to prove that not taking it was due to the employer. Therefore, the employer does not need to pay additional wages for paternity leave.¡± Civil Ruling of Jilin Provincial People¡¯s High Court (2021) Ji Min Shen No.1541 (the court held that the untaken paternity leave was not because of the company¡¯s refusal, so the “overtime wage” of paternity leave was not upheld). Civil Judgment of the Second Instance of Labor Dispute between Chongji Technology (Beijing) Co., Ltd. and Chen Yang Civil Judgment of the Third Intermediate People’s Court of Beijing (2022) Jing 03 Min Zhong No.1548 (the employee did not prove that his request for paternity leave was refused, so the unused paternity leave pay was not upheld).
This divergence is so stark that even within the same place or court, opposite judgments may occur. For example, in the case of Dai Yinping in 2021, the Shenzhen Intermediate Court held the employer did not cause the unuse of the paternity leave, so there was no need to pay for unused paternity leave pay; but in the case of Han Shimin in 2021, the same court held that the law did not stipulate that the employer must pay unused paternity leave. In another example, in the case of Ma Huijie in 2021, the Second Intermediate People’s Court of Beijing held that since the employer paid the normal wages, it did not need to pay additional unused paternity leave pay; but in the case of Chen Yang in 2022, the Third Intermediate People’s Court of Beijing implied that only when application for paternity leave was rejected by employer, the employer was obligated to pay unused paternity leave pay.
If applicable, the method by which courts calculate unused paternity leave pay is generally based on the employee’s normal daily wage rate. However, there are exceptional cases where the calculation is based on overtime wage at two times the normal rate. 4Dong Shiwei, Shandong Taishan Shengliyuan Glass Co., Ltd. and other civil judgments of the second instance of labor disputes Civil Judgment of the Intermediate People’s Court of Tai’an City, Shandong Province (2022) Lu 09 Min Zhong No.4164 (The court calculated it according to twice the normal wage for the number of days not taken, as the normal wages have already been paid).Additionally, the right to claim unused paternity leave pay must be exercised within one year from the employee¡¯s wife’s laboring date; otherwise, the limitation of arbitration shall be exceeded.
Employees on labor dispatch, assignment contract, irregular or general work hours, except casual employees, should also be entitled to paid paternity leave.5Civil Judgment of First Instance of Labor Dispute between Jiao Xiaopeng and Beijing Branch of Breakthrough Lubricating Oil Co., Ltd. Civil Judgment of Beijing Daxing District People’s Court (2019) Jing 0115 Min Chu No.1870 (the employee is on irregular workhour system and is entitled to take paternity leave.)
Note that paternity leave only applies to employees whose female wives give birth, as China does not recognize same-sex marriages. Furthermore, paid paternity leave only applies to lawful marriage and childbirth, for example, giving birth without marriage registration does not enable eligibility for paid paternity leave. Of course, employers are free to provide paid paternity leave to related employees beyond statutory provisions.
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Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
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- 1Zeng Xianyu, Guangdong Haosheng Chaofeng Garments Co., Ltd. Labor Dispute Civil Judgment of Second Instance Civil Judgment of Guangzhou Intermediate People’s Court of Guangdong Province (2021) Yue 01 Min Zhong No.18784 (The court held that the pay for the employee who did not take paternity leave was calculated according to the normal wages based on the actual number of days of paternity leave not taken).
- 2Zhong Youhong and Shenlan Technology (Shanghai) Co., Ltd. Employment contract Dispute Civil Case of Second Instance Civil Judgment Shanghai First Intermediate People’s Court Civil Judgment (2021) Hu 01 Min Zhong 10197 No., Yang Shouan, Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Dongjiang Mould (Shenzhen) Co., Ltd. Civil Ruling of Guangdong Provincial People¡¯s High Court (2020) No.5442. ¡°The law does not explicitly stipulate that in the case that workers have not taken or partially taken paternity leave, employers is obligated to unused paternity leave pay¡±. Ma Huijie and Beijing Daxing District Maternal and Child Health and Family Planning Service Center Labor Dispute Second Instance Civil Judgment Beijing Second Intermediate People’s Court Civil Judgment (2021) Jing 02 Min Zhong No.7662 (the court held that the employer had paid the monthly wage in full and did not need to pay the unused paternity leave pay separately). Civil Judgment of the Second Instance of Personnel Dispute between Han Shimin and Shenzhen Huacai Optoelectronics Co., Ltd. Civil Judgment of the Intermediate People’s Court of Shenzhen City, Guangdong Province (2020) Yue 03 Min Zhong No.4413 (the law does not stipulate that unused paternity leave must be compensated). Civil Judgment of First Instance on Employment contract Dispute between Wu Fei and Suzhou Aoteming Pharmaceutical Technology Co., Ltd. Civil Judgment of the People’s Court of Suzhou Industrial Park, Jiangsu Province (2021) Su 0591 Minchu 14924.
- 3Zhang Xin and Hunan Lanqiao Human Resources Group Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Changsha Intermediate People’s Court of Hunan Province (2021) Hunan 01 Minzhong No.12018. ¡°Zhang Xin did not submit evidence to prove that the number of days he did not take paternity leave was caused by Lanqiao Company. Therefore, there is no factual and legal basis for Zhang Xin’s request for Lanqiao Company to pay wages for the number of days of untaken paternity leave, and the Court does not support the claim.¡± Labor Dispute between Dai Yinping and Shenzhen Chuangxiang Architectural Decoration Engineering Co., Ltd. Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2021) Yue 03 Minzhong No.18348 (In this case, the employee did not apply for the paternity leave, the company only paid normal wages, and the court found that the employee could not get unused paternity leave pay because he failed to prove that not taking it was due to the employer. Therefore, the employer does not need to pay additional wages for paternity leave.¡± Civil Ruling of Jilin Provincial People¡¯s High Court (2021) Ji Min Shen No.1541 (the court held that the untaken paternity leave was not because of the company¡¯s refusal, so the “overtime wage” of paternity leave was not upheld). Civil Judgment of the Second Instance of Labor Dispute between Chongji Technology (Beijing) Co., Ltd. and Chen Yang Civil Judgment of the Third Intermediate People’s Court of Beijing (2022) Jing 03 Min Zhong No.1548 (the employee did not prove that his request for paternity leave was refused, so the unused paternity leave pay was not upheld).
- 4Dong Shiwei, Shandong Taishan Shengliyuan Glass Co., Ltd. and other civil judgments of the second instance of labor disputes Civil Judgment of the Intermediate People’s Court of Tai’an City, Shandong Province (2022) Lu 09 Min Zhong No.4164 (The court calculated it according to twice the normal wage for the number of days not taken, as the normal wages have already been paid).
- 5Civil Judgment of First Instance of Labor Dispute between Jiao Xiaopeng and Beijing Branch of Breakthrough Lubricating Oil Co., Ltd. Civil Judgment of Beijing Daxing District People’s Court (2019) Jing 0115 Min Chu No.1870 (the employee is on irregular workhour system and is entitled to take paternity leave.)