| Q1. |
What are the criteria
for PAID maternity leave? |
| A1. |
An employee is eligible for 10 weeks' PAID
maternity leave if-
| (a) |
she has worked under a continuous
contract for NOT
less than 40 weeks immediately before the commencement
of maternity leave; |
| (b) |
she has given proper notice of pregnancy to her employer
such as by presenting a medical certificate confirming her
pregnancy; and |
| (c) |
she has produced a medical certificate specifying the expected
date of confinement if so required by her employer. |
If the length of employment service under a
continuous contract is less
than 40 weeks immediately before the commencement
of maternity leave, the employee is eligible for 10 weeks' maternity
leave WITHOUT
PAY.
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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 equal 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. In calculating
the average daily wages, an employer has to exclude (i) the periods
for which an employee is not paid his 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 for absence due to attendance at medical
examinations in relation to pregnancy?
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| A3. |
Yes. When the employee is absent from work to attend medical
examinations in relation to her pregnancy, post confinement medical
treatment or miscarriage, any day on which she is absent shall
be counted as sick leave. She is entitled to a sickness allowance
of four-fifths of her average daily wages if she -
(a) has accumulated the number of paid sickness days taken; and
(b) the sick leave is supported by an appropriate medical certificate.
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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. |
No, except in cases of summary dismissal due to the employee's
serious misconduct.
After a pregnant employee with a
continuous contract has been confirmed pregnant and has served
a notice of pregnancy on her employer, it is an offence for the
employer to dismiss the pregnant employee from the date on which
her pregnancy is confirmed by a medical certificate to the date
on which she is due to return to work on the expiry of her maternity
leave.
If a pregnant employee is informed of her dismissal 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.
Where it has been expressly agreed that the employment is on probation,
the employer is not
prohibited from dismissing the employee during
the probation period of not more than 12 weeks. The employer should
not, however, dismiss the employee by reason of her pregnancy.
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| Q6. |
What is the penalty
if an employer dismisses a pregnant employee, except in cases of
summary dismissal or dismissal during a probation period of not
more than 12 weeks? |
| A6. |
A6. The employer is liable to prosecution and, on conviction,
a fine of HK$100,000. He is also required to pay the dismissed
employee:
(a) wages in lieu of notice;
(b) a further sum equivalent to one month's wages as compensation;
and
(c) 10 weeks' maternity leave pay if, but for the dismissal, she
would have been entitled to such payment.
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