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China - Maternity protection - 2011


LAST UPDATE

20 July 2011

Data quantity

NORMAL

SOURCES

This database is updated on the basis of national law and State Council administrative regulations, i.e. law as promulgated by the National People’s Congress, or its Standing Committee, and the State Council, or the Central People’s Government, of the People’s Republic of China. Further legal rules issued by the Ministry of Human Resources and Social Security (MOHRSS) and regulations issued at a provincial level may also be relevant, but fall outside the ambit of this review.
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Name of Act

Regulations on Labor Protection in Workplaces Where Toxic Substances Are Used (Adopted at the 57th Executive Meeting of the State Council on April 30, 2002, promulgated by Decree No.352 of the State Council of the People’s Republic of China on May 12, 2002, and effective as of the date of promulgation)

Name of Act

Labour Law 1994 Adopted at the Eighth Meeting of the Standing Committee of the Eighth National People’s Congress on July 5, 1994 and promulgated by Order No. 28 of the President of the People’s Republic of China, commenced 1 January 1995
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Name of Act

Labour Insurance Regulations, by the 73rd Government Administrative Meeting of the Government Administration Council on February 23 1951, promulgated by the Government Administration Council on February 26 1951 and effective from February 1 1953. Version sourced from novexcn.com, as accessed at http://www.novexcn.com/labor_insur_regs_51.html on 20 July 2011

Name of Act

Law of the People’s Republic of China on the Protection of Rights and Interests of Women, passed by the National People’s Congress on 3 April 1992, amended on 28 August 2005
Current version available on www.china.org.cn http://www.china.org.cn/english/government/207405.htm

Name of Act

Regulations on Labour Protection for Female Workers and Employees, adopted at the 11th Regular Meeting of the State Council on 28 June 1988

Name of Act

Law on Maternal, Infant Health Care Reported OW3110120194 Beijing XINHUA Domestic Service in Chinese 0727 GMT 27 October 1994

Name of Act

Measures for Implementation of the Law of People’s Republic of China on Maternal and Infant Care, promulgated by decree no. 308 of the State Council of the People’s Republic of China on 20 June 2001 and effective on the same date

Other source used

Social Security Programs Throughout the World: Asia and the Pacific 2010 - China

Other source used

Sean Cooney ’Working Conditions in an Integrating World: Regulating Time, Money and Family Life - China’ (2009)

Other source used

Brown, Ronald C ’Understanding Labor and Employment Law in China’ Cambridge University Press, New York, 2010

MATERNITY LEAVE

Female workers have entitlements to 90 days maternity leave under the Labour Law and the Regulations on Labour Protection for Female Workers and Employees.

Workers covered by the Labour Insurance Regulations are entitled to 56 days’ maternity leave.
Labour Law 1994 §62
Regulations on Labour Protection for Female Workers and Employees 1988 §8
Labour Insurance Regulations 1951 §16

Scope

All female workers who have formed a labour relationship with an employing unit are entitled to paid maternity leave under the Labour Law.

The maternity leave entitlements provided by the Regulations on Labour Protection for Female Workers and Employees apply to all female workers and employees of all State organs, people’s organizations, enterprises and institutions within the territory of the People’s Republic of China.

The maternity leave entitlements provided by the Labour Insurance Regulations apply to State-operated, joint state-private, private and cooperative factories, mines and their subsidiary units and business management organizations, each of which employs more than 100 workers and staff members, and each railway, shipping or postal and telecommunications enterprise and its subsidiary units.
Labour Law 1994 §2, 62
Regulations on Labour Protection for Female Workers and Employees 1988 §2
Labour Insurance Regulations 1951 §2
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Qualifying conditions

No qualifying conditions have been identified in relation to the entitlement to maternity leave under the Labour Law. However, to be entitled to maternity leave under the Regulations on Labour Protection for Female Workers and Employees, women must have complied with State stipulations concerning family planning.
Labour Law 1994 §62
Regulations on Labour Protection for Female Workers and Employees 1988 §15
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Duration

The Labour Law provides that the duration of maternity leave shall be no less than 90 days after childbirth.

The Regulations on Labour Protection for Women also provides for an entitlement to 90 days’ maternity leave, but contemplates that women may take up to 15 days’ paid leave prior to childbirth.
Labour Law 1994 §62
Regulations on Labour Protection for Female Workers and Employees 1988 §8
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General total duration

The general entitlement shall be no less than 90 days.
Labour Law 1994 §62
Regulations on Labour Protection for Female Workers and Employees 1988 §8
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Historical data (year indicates year of data collection)
  • 2009: 90 days.
  • 2004: Ninety days
  • 1998: Ninety days
  • 1994: Ninety days

Extension

In the case of complications at the birth, or where there is more than one child from the same birth, the mother is entitled to an additional 15 days of leave (per child, in the case of multiparous mothers).

Further, the Law of the People’s Republic of China on the Population and Family Planning authorises local governments to extend parental leave periods for parents who adhere to family planning measures.
Regulations on Labour Protection for Female Workers and Employees 1988 §8
’Working Conditions in an Integrating World: Regulating Time, Money and Family Life - China [6.9]
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Leave in case of illness or complications

In the case of complications at the birth, the mother is entitled to an additional 15 days of leave. In the case of miscarraige, an appropriate leave should be given to the femal worker or employee by her unit according to medical certification.
Regulations on Labour Protection for Female Workers and Employees 1988 §8
’Working Conditions in an Integrating World: Regulating Time, Money and Family Life - China [6.6]

RELATED TYPES OF LEAVE

Some local government laws grant an entitlement to paternity leave in certain circumstances.

Parental leave

No relevant provisions identified.

Paternity leave

Although there is no provision for paternity leave in the Labour Law, the Family Planning Law refers to leave for fathers. As a consequence, some local governments have granted leave to fathers where they marry after the age of 25 or commit to having only one child. For example, in Guangdong Province, fathers who meet the relevant criteria have an entitlement to 10 days’ parental leave.
’Working Conditions in an Integrating World: Regulating Time, Money and Family Life - China [6.10]

Adoption leave

No relevant provisions identified.

RIGHT TO PART-TIME WORK

No provision allowing for workers who are pregnant or new-parents to change to part-time work identified.

CASH BENEFITS

Maternity leave is to be paid under the Labour Law 1994 and the Labour Insurance Regulations.

The Regulations on Labour Protection for Female Workers and Employees do not provide for an entitlement to payment with respect to maternity leave.
Labour Law 1994 §62
Regulations on Labour Protection for Female Workers and Employees 1988 §8
Labour Insurance Regulations 1951 §16

Maternity leave benefits

Wages are paid to female workers on maternity leave through an employer-funded insurance scheme.
Labour Law 1994 §62
Labour Insurance Regulations 1951 §16
’Working Conditions in an Integrating World: Regulating Time, Money and Family Life - China [6.4]
Understanding Labor and Employment Law in China p138, citing the Trial Measures for Maternity Insurance of Staff and Workers of Enterprises, promulgated by the Ministry of Labour 14 December 1994, effective 1 January 1995
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Scope

The entitlement to payment under §62 of the Labour Law applies to all female workers who have formed a labour relationship with an employing unit.

The right to payment under §16 of the Labour Insurance Regulations applies to all State-operated, joint state-private, private and cooperative factories, mines and their subsidiary units and business management organizations, each of which employs more than 100 workers and staff members and each railway, shipping or postal and telecommunications enterprise and its subsidiary units.
Labour Law 1994 §§2, 62
Labour Insurance Regulations 1951 §§2, 16
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Qualifying conditions

No provisions imposing qualifying conditions with respect to maternity cash benefits identified.
Labour Law 1994
Labour Insurance Regulations 1951

Duration

The entitlement to wages mirrors the entitlement to maternity leave, i.e. no less than 90 days for maternity leave taken under the Labour Law and 56 days for maternity leave taken under the Labour Insurance Regulations.
Labour Law 1994 §62
Labour Insurance Regulations 1951 §16

Amount

Female workers are to be paid an amount equal to their usual wages for the duration of the maternity leave.
Labour Law 1994 §62
Labour Insurance Regulations 1951 §16
Historical data (year indicates year of data collection)
  • 2009: 100% (The average monthly wage of the enterprise for the previous year)
  • 2004: One hundred percent
  • 1998: One hundred percent
  • 1994: One hundred percent

Financing of benefits

The amounts payable with respect to maternity leave are to be paid from an employer-funded insurance scheme.
Labour Law 1994 §62
Labour Insurance Regulations 1951 §13
’Working Conditions in an Integrating World: Regulating Time, Money and Family Life - China [6.2], [6.4]
Understanding Labor and Employment Law in China p138
Historical data (year indicates year of data collection)
  • 2009: Social security (Social Insurance Fund)
  • 2004: Employer
  • 1998: Employer
  • 1994: Employer (of state-owned ent)

Alternative provisions

When a female worker or staff member or the spouse of a male worker or staff member gives birth to a child, childbearing subsidies shall be paid under the labour insurance funds, the sum to be the local retail price of 5 chi (1/3 metre) red cloth.
Labour Insurance Regulations 1951 §16(4)

Parental leave benefits

When a female worker or staff member or the spouse of a male worker or staff member gives birth to a child, childbearing subsidies shall be paid under the labour insurance funds, the sum to be the local retail price of 5 chi (1/3 metre) red cloth.
Labour Insurance Regulations 1951 §16(4)

Scope

The right to payment under §16(4) of the Labour Insurance Regulations applies to all State-operated, joint state-private, private and cooperative factories, mines and their subsidiary units and business management organizations, each of which employs more than 100 workers and staff members and each railway, shipping or postal and telecommunications enterprise and its subsidiary units.
Labour Insurance Regulations 1951 §2

Qualifying conditions

No relevant provisions identified.
Labour Insurance Regulations 1951 §16

Duration

Not stipulated.
Labour Insurance Regulations 1951 §16(4)

Amount

The amount payable as child-bearing subsidies is to be equivalent to the local retail price of 5 chi (1/3 metre) red cloth.
Labour Insurance Regulations 1951 §16(4)

Financing of benefits

The amount payable as child-bearing subsidies is to be paid from an employer-funded insurance scheme.
Labour Insurance Regulations 1951 §16

MEDICAL BENEFITS

A national maternity insurance fund exists and may be used for maternity allowances and related medical fees. A Basic Medical Insurance Fund has also been established, but covers only urban workers.
Understanding Labor and Employment Law in China pp136-138

Pre-natal, childbirth and post-natal care

Funds from the maternity insurance fund may be used for maternity allowances and related medical fees, as fixed by local governments.

The Law on Maternal, Infant Health Care stiplulates that the State provides essential conditions and material assistance so that mothers and infants have access to medical and health care services. It further states that medical and health care organs should provide health care services to child-bearing, pregnant and lying-in women during their gestation and lying-in periods.
Understanding Labor and Employment Law in China p138
Law on Maternal, Infant Health Care Chapters I and III
Measures for Implementation of the Law of People’s Republic of China on Maternal and Infant Care Chapters III and IV

Financing of benefits

The maternity insurance fund is financed by employer contributions. The contribution levels are set by local governments, but will not exceed 1% of the total payroll.

The Basic Medical Insurance Fund is funded by mandated employer and employee contributions. The employer’s contribution is split between the general fund (70% of contribution per employee) and the relevant employee’s personal account (30%). Small claims are paid from an employee’s personal account and large claims (exceeding 10% of the employee’s annual wage) are paid from the general fund.
Understanding Labor and Employment Law in China pp136-138, citing the Decision of the State Council on Establishing the Urban Employees’ Basic Medical Insurance System
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BREASTFEEDING

Provision is to be made for breastfeeding breaks and facilities.
Regulations on Labour Protection for Female Workers and Employees 1988 §§9, 11

Right to nursing breaks or daily reduction of hours of work

A female worker or employee having an infant aged under 1 year should be given 2 nursing times (including bottle feeding time), with 30 minutes each break per child, within the working hours of every shift. The two nursing times within the working hours of every shift may be merged into one for use.
Regulations on Labour Protection for Female Workers and Employees 1988 §9

Remuneration of nursing breaks

The nursing time plus the time for travelling to and fro inside the unit shall be counted as working time.
Regulations on Labour Protection for Female Workers and Employees 1988 §9

Nursing facilities

A unit with ’quite many’ female workers and employees should, in accordance with relevant State stipulations, establish step by step such self-run or jointly-run facilities as clinics for females, rest-rooms for pregnant females, nursing rooms, nurseries and kindergartens etc. It should also appropriately solve their problems with respect to physiological hygiene, nursing and infant care.
Regulations on Labour Protection for Female Workers and Employees 1988 §11

HEALTH PROTECTION

A range of provisions relating to health protection for female workers, both pregnant and otherwise, exist.

Arrangement of working time

Female workers who seven or more months’ pregnant, or who are breastfeeding babies under 1 year old, shall not be arranged to extend their working time or to work night shifts.
Labour Law 1994 §§61, 62

Dangerous or unhealthy work

Employing units are prohibited from engaging female workers in a range of dangerous, unhealthy and physically labour-intensive types of work. The categories of prohibited work increase when the worker is pregnant or breast-feeding.
Labour Law 1994 Chapter VII
Regulations on Labor Protection in Workplaces Where Toxic Substances Are Used

General

General prohibition on women performing certain types of risky work:
It is prohibited to arrange female workers to engage in work with Grade IV physical labour intensity as stipulated by the State, or other work that female workers should avoid. During their menstrual period, female workers shall not be arranged to engage in work with Grade III physical labour intensity as stipulated by the State.

Pregnancy-related prohibitions:
Female workers during their pregnancy shall not be arranged to engage in work with Grade III physical labour intensity as stipulated by the State or other work that they should avoid in pregnancy. Female workers who are breastfeeding babies under 1 year old shall not be arranged to engage in work with Grade III physical labour intensity as stipulated by the State, or other labour that they should avoid during the breastfeeding period.
Labour Law 1994 §§59, 60, 61, 62
Regulations on Labour Protection for Female Workers and Employees 1988 §§5, 6, 7, 10
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Particular risks

General prohibition on women performing certain types of risky work:
It is prohibited to arrange female workers to engage in work down the pit of mines. During their menstrual period, female shall not be arranged to engage in work high above the ground, under low temperature, or in cold water.

Pregnancy-related prohibitions:
An employing unit shall not female employees in pregnancy or lactation to engage in the operations in which toxic substances are used.
Labour Law 1994 §§59, 60, 61
Regulations on Labor Protection in Workplaces Where Toxic Substances Are Used §7

NON-DISCRIMINATION AND EMPLOYMENT SECURITY

A range of provisions prohibiting discriminatory treatment of women, including when pregnant, exist.

Anti-discrimination measures

Labourers shall not be discriminated against in employment, regardless of their sex. Females shall enjoy equal rights as males in employment and it shall not be allowed, in the recruitment of staff and workers, to use sex as a pretext for excluding females from employment or to raise recruitment standards for females, except for the types of work or posts that are not suitable for females as stipulated by the State.

No employing unit shall reduce the salary of female employees by reason of marriage, pregnancy, maternity leave or nursing unless the female employees request the termination.
Labour Law 1994 §§12, 13
Law of the People’s Republic of China on the Protection of Rights and Interests of Women §27
’Working Conditions in an Integrating World: Regulating Time, Money and Family Life - China [6.5]
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Prohibition of pregnancy testing

No relevant provisions identified.

Protection from discriminatory dismissal

The employing unit shall not revoke its labour contract with a labourer where the labourer is a female staff member or worker during pregnancy, child-birth or breast-feeding periods.

No employing unit shall dismiss female employees, or unilaterally terminate labour contracts or service agreements with them by reason of marriage, pregnancy, maternity leave or nursing unless the female employees request the termination.
Labour Law 1994 §29
Law of the People’s Republic of China on the Protection of Rights and Interests of Women §§2, 22, 27
Regulations on Labour Protection for Female Workers and Employees 1988 §4
’Working Conditions in an Integrating World: Regulating Time, Money and Family Life - China [6.5]

Burden of proof

No relevant provisions identified.

Guaranteed right to return to work

There is no express right to return to work per se. However, employing units are prohibited from reducing the basic wage or terminating the labour contracts of female workers during the period when female workers and employees are pregnant or on maternity leave or nursing babies.
Regulations on Labour Protection for Female Workers and Employees 1988 §4

Results generated on: 01st November 2014 at 12:56:53.
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