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Frequently
Asked Questions about The Employment Ordinance, Cap. 57
Maternity Leave
Q1. |
What
are the criteria for PAID maternity leave?
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Q2. |
How
is maternity leave pay calculated? When should it be paid?
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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?
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Q4. |
When
can a pregnant employee start her maternity leave?
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Q5. |
Can
an employer dismiss a pregnant employee?
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Q6. |
What
are the legal liabilities if an employer dismisses a pregnant employee?
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Content
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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;
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(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
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(3) |
she has produced
a medical certificate specifying the expected date of confinement if so required
by her employer.
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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?
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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.
NOTE: Confinement means the delivery of a child; miscarriage means the expulsion of the products of conception which are incapable of survival after being born before 28 weeks or pregnancy. If before 28 weeks of pregnancy an employee delivers a surviving child or the child prematurely dies after being born, it is not a case of miscarriage.
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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) |
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(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 :
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the
employee is summarily dismissed due to her serious misconduct; or
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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) |
payment 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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