Frequently Asked Questions about
The Employment Ordinance, Cap. 57

Maternity Leave

Q1. What are the criteria for PAID maternity leave? Answer
Q2. How is maternity leave pay calculated? When should it be paid? Answer
Q3. Is an employer required to pay a pregnant employee sickness allowance for absence due to attendance at medical examinations in relation to pregnancy? Answer
Q4. When can a pregnant employee start her maternity leave? Answer
Q5. Can an employer dismiss a pregnant employee? Answer
Q6. What are the legal liabilities if an employer dismisses a pregnant employee? Answer

 
Content
 
Q1. What are the criteria for PAID maternity leave?
A1. An employee is eligible for 10 weeks' PAID maternity leave if-

(1)
she has been employed under a continuous contract for NOT less than 40 weeks immediately before the commencement of scheduled maternity leave;


(2)
she has given notice of pregnancy and her intention to take maternity leave to her employer after the pregnancy has been confirmed, such as by presenting a medical certificate confirming her pregnancy to the employer; and


(3)
she has produced a medical certificate specifying the expected date of confinement if so required by her employer.

In case the length of employment service under a continuous contract is less than 40 weeks immediately before the commencement of scheduled maternity leave, the employee is eligible for 10 weeks' maternity leave WITHOUT PAY if the employee has given notice of pregnancy and her intention to take maternity leave to her employer after the pregnancy has been confirmed.

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Q2. How is maternity leave pay calculated? When should it be paid?
A2.

The daily rate of maternity leave pay is a sum equivalent to four-fifths of the average daily wages earned by an employee in the 12-month period preceding the first day of the maternity leave. If an employee is employed for less than 12 months, the calculation shall be based on the shorter period.  In calculating the average daily wages, an employer has to exclude (i) the periods for which an employee is not paid her wages or full wages, including rest day, statutory holiday, annual leave, sickness day, maternity leave, sick leave due to work injuries or leave taken with the agreement of the employer, and any normal working day on which the employee is not provided by the employer with work; together with (ii) the sum paid to the employee for such periods.

Maternity leave pay should be paid on the normal pay day of the employee.

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Q3.

Is an employer required to pay a pregnant employee sickness allowance for absence due to attendance at medical examinations in relation to pregnancy? 

A3.

When the employee’s absence from work to attend medical examination in relation to her pregnancy, post confinement medical treatment or miscarriage is supported by an appropriate medical certificate*, any such day on which she is absent shall be counted as a sickness day.  Under such circumstances, if the employee has accumulated sufficient number of paid sickness days, each sickness day shall be paid sickness allowance which is a sum equivalent to four-fifths of her average daily wages.

* The medical certificate should specify the number of days on which, and the nature of the sickness or injury on account of which, the employee is unfit for work.

(For details on sickness allowance under the Employment Ordinance, please refer to “A Concise Guide to the Employment Ordinance” published by the Labour Department.)

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Q4. When can a pregnant employee start her maternity leave?
A4.

With the agreement of her employer, a pregnant employee may decide to commence her maternity leave from 2 to 4 weeks before the expected date of confinement.

If the employee does not decide on the date, or fails to secure her employer's agreement, the employee shall commence her maternity leave 4 weeks before the expected date of confinement.

Maternity leave commences on the date of confinement if it occurs before the scheduled maternity leave.

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Q5. Can an employer dismiss a pregnant employee?
A5.

An employer is prohibited from dismissing a pregnant employee from the date on which she is confirmed pregnant by a medical certificate to the date on which she is due to return to work upon the expiry of her maternity leave if:

(1)
the employee has been employed under a continuous contract, and
(2)
she has served a notice of pregnancy to the employer.

If a pregnant employee is dismissed by her employer before she has served a notice of pregnancy, she may serve such notice immediately after being informed of her dismissal. Under such circumstances, her employer must withdraw the dismissal or the notice of dismissal.

However, the employer is not prohibited from dismissing a pregnant employee under the following circumstances :

•   
the employee is summarily dismissed due to her serious misconduct; or
•   
where it has been expressly agreed that the employment is on probation, the employee is dismissed for reasons other than pregnancy during the probation period of not more than 12 weeks.

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Q6. What are the legal liabilities if an employer dismisses a pregnant employee?
A6.

Except for those specified circumstances (Click here to see A5 for details of the employment protection to pregnant employee) , it is an offence for an employer to dismiss a pregnant employee. The employer is liable to prosecution and, upon conviction, to a fine of $100,000. Besides, the employer is required to pay the following sums of money to the dismissed employee within 7 days after the day of termination:

(1) wages in lieu of notice;
(2) a further sum equivalent to one month's wages as compensation**; and
(3) 10 weeks' maternity leave pay if, but for the dismissal, she would have been entitled to such payment.

The employee may also claim remedies for employment protection against her employer if she is dismissed other than for a valid reason as specified in the Ordinance.  (For details on the employment protection under the Employment Ordinance, please refer to “A Concise Guide to the Employment Ordinance” published by the Labour Department.)

** The one-month further sum is equivalent to the average monthly wages earned by an employee in the 12-month period preceding the date of termination of contract. If an employee is employed for less than 12 months, the calculation shall be based on the shorter period.  In calculating the average monthly wages, an employer has to exclude (i) the periods for which an employee is not paid her wages or full wages, including rest day, statutory holiday, annual leave, sickness day, maternity leave, sick leave due to work injuries or leave taken with the agreement of the employer, and any normal working day on which the employee is not provided by the employer with work; together with (ii) the sum paid to the employee for such periods.


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