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China: Maternity Leave Extended from 90 Days to 98 Days

(June 18, 2012) On April 28, 2012, China's State Council published the Special Provisions on Labor Protection of Female Employees (text in Chinese, Central People's Government of the People's Republic of China website (May 7, 2012)). Aiming to enhance the protection of female employees' well-being in the workplace, the Special Provisions repeal the 1988 Provisions on Labor Protection of Female Employees. They took effect immediately on the day of publication. (Id.)

According to the Special Provisions, female employees are now entitled to 98 days of maternity leave for childbirth, an increase of 8 days from the current 90. Among the 98 days, 15 may be taken before giving birth. In cases of dystocia (difficult delivery), the maternity leave will be extended by 15 days; in cases of multiple births, the maternity leave will be extended by 15 days for each additional newborn. (Id., art. 7.)

During the maternity leave, the female employee will receive a maternity allowance if she is covered by maternity insurance; if she is not insured, the employee will be paid by the employer the same salary she earned before taking the leave. (Id. art. 8.) Similarly, the medical expenses for childbirth, miscarriages, and abortions are paid from the maternity insurance fund, but if the employee is not insured, the medical expenses will be paid by the employer. (Id.) The Social Insurance Law, which took effect on July 1, 2011, requires employers to contribute to the maternity insurance fund so that their employees can be covered by the maternity insurance (Social Insurance Law, art. 53). (Laney Zhang, China: Law on Social Insurance Passed, GLOBAL LEGAL MONITOR (Nov. 4, 2010).) Thus, employers that have not yet contributed to the maternity insurance fund will have to pay the insurance benefits to their uninsured employees in accordance with this rule provided by the Special Provisions.

According to the Special Provisions, pregnant female workers may use their work time to visit a doctor's office for prenatal care. (Id. art. 6.) Employers must also give one hour of work time each day to lactating female employees for breast-feeding. (Id. art. 9.)

The Special Provisions adjust the scope of jobs that employers cannot assign to female employees, by listing the types of jobs that female employees cannot do in general or during menstrual periods, pregnancy, or lactation, respectively. (Id. art. 4 & Appendix.) The Special Provisions also expressly require the employer to prevent and stop sexual harassment of female employees in the work place. (Id. art. 11.)

The Special Provisions apply to employers located within the territory of China, including state organs, enterprises, social groups, and other public and private sector employers. (Id. art. 2.)