Korea, Republic of - Maternity protection - 2011

16 November 2011

Act on Equal Employment and Support for Work-Family Reconciliation,
Act No. 3989 of 4 December 1987, as amended to Act No.10339, Jun 4,2010.

Labour Standards Act,
No. 5309, 13 March 1997, as amended up to Act No.10719 of May the 24th of 2011.

Employment Insurance Act,
No. 4644, Dec. 27, 1993, as amended up to Act No.10719,May 24,2011.

Enforcement Decree of the Labour Standards Act,
Presidential Decree No. 15320, 27 March 1997, as amended up to Presidential Decree No.22804,March 30,2010.

Enforcement Decree of the Employment Insurance Act,
Presidential Decree No. 14570, Apr. 6, 1995. as amended up to Presidential Decree No.22603,Dec. 31,2010.

Mother-Child Health Act, wholly amended by Act No. 3824, May 10, 1986, Amended by Act No. 5859, Feb. 8, 1999.

The Act on the Promotion of the Economic Activities of Career-break Women, etc No.9101, June 5,2008 as amended up to Act No.10339, June 4,2010.

Enforcement Decree of the Act on Equal Employment and Support for Work-family Reconciliation, Presidential Decree No.12489, Jul 7,1988 as Amended up to Presidential Decree No.22269, Jul.12,2010.

Occupational Safety and Health Act No. 4220, January 13,1990 as amended up to Act. No.9796, Oct.9,2009.

Enforcement Decree of the Occupational Safety and Health Act, Presidential Decree No.13053,July 14,1990 as amended up to Presidential Decree No.22061, February 24,2010.

Ministery of Gender Equality

Ministry of Health and Welfare

Ministry of Employment and Labor

SHADOW REPORT CEDAW

Infant Care
Child-care facilities.

Health Insurance

National Health Insurance Corporation

The Labour Standards Act, which provides for maternity leave, applies to all businesses or workplaces in which five workers or more are ordinarily employed.

Excluded: businesses or workplaces in which only relatives living together with the employer are engaged as well as domestic workers.

There are not qualifying conditions to be entitled with maternity leave

45 days postnatal leave.

90 days, to be distributed before and after childbirth.

Not expressly provided.

An employer shall grant childcare leave, if a worker asks for leave to take care of his/her child(including an adopted child)aged 6 and under who is not enrolled into elementary school(hereinafter referred to as "childcare leave").

This Act shall apply to all business or workplaces that employ workers, provided that all or part of this Act may not apply to business prescribed by the Presidential Decree.
The Presidential Decree No12489 of 1988 have excluded businesses or workplaces consisting of blood relatives residing together and to housekeepers.

A worker has offered continuous services in the business concerned for more than a year prior to the scheduled date of childcare leave(hereinafter referred to as "scheduled start date of leave"); or
A worker’s spouse is not on childcare leave for the same infant(including childcare leave provided under other Acts and subordinated statutes).

A worker who intends to apply for childcare leave pursuant to Art.19(1) of the Act shall submit to his/her employer an application specifying the name and date of birth of the infant to be care for, the scheduled start date of leave, the date intended to terminate the childcare leave(hereinafter referred to as "scheduled end date of leave"),the date of application, and information on the applicant,etc. not later than 30 days prior to the scheduled start date of leave.
Notwithstanding the previous paragraph, a worker may apply for childcare leave by not later than seven days prior to the scheduled start date of leave in any of the following cases:
where a child was born before the expected date of delivery.
where rearing the infant is difficult due to the death, injury, illness or physical or mental disability of or divorce from the spouse.

Up to one year.

This norm shall apply to all business or workplaces(hereinafter referred to as "business")that employ workers:provided that all or part of this Act may not apply to business prescribed by the Presidential Decree.

The specific article on paternity leave says talks about a worker who’s spouse has given childbirth.

To be granted upon request of the worker, before the expiry of 30 days after childbirth.

3 days

There are not such express legal provisions for adoption leave. However, adoptive parents are also entitled to ask for childcare leave.
Please take a look at the field on PARENTAL LEAVE whose scope, qualifying conditions and extent apply to adoptive parents as well.

Workers eligible for childcare leave.

For one year or less a reduction to 15 hours minimum up to 30 hours maximum per week shall be granted.

After the duration of working hour reduction for childcare is over, the employer shall allow the worker to return to the same work of work offering the same level of wage as before the hour reduction.

The Employment Insurance Act is applicable to all businesses or workplaces that hire workers. However, it does not apply to a business in the fields of agriculture, forestry, fishery and hunting in which 4 workers or less are ordinarily employed or a construction project of which the total construction amount is less than 20 million Won.

In addition, it does not apply to workers whose fixed working hours per month is less than 60 hours (including those whose fixed working hours per week is less than 15 hours), daily workers (referring to those employed for one month or less), Government officials under the State Public Officials Act and the Local Public Officials Act, those who are subject to the Private School Teachers Pension Act, some categories of foreign workers and special post office staff.

To receive the maternity leave benefit, the total insured period before the last day of the maternity leave shall be 180 days or more. The application shall be made in general within one month after the first day of leave or 12 months after the last day of leave.

Up to 30 days in excess of 60 days.

100 per cent of ordinary wage.

Employment Insurance Fund.
For enterprises which fail to meet the criteria set forth by the Enforcement Decree of the Employment Insurance Act (see above scope), the employer pays the first 60 days.

An employer shall advance partial payments of wages corresponding to work offered even prior to the payday, if a worker requests the employer to do so in order to meet the expenses for childbirth, diseases, disasters, or other cases of emergency as prescribed by the Presidential Decree. (Emergency payment).

Workers who take more than 30 days of leave for child rearing (excluding the days that overlap with the 90-day maternity leave period).

Conditions for receiving cash benefits during parental leave are as follows: (1) the employee was insured for employment insurance benefits for a total of at least 180 days prior to taking the leave; (2) the employee’s spouse, if eligible for national employment benefits, is not currently on a leave of absence for child rearing (an exception is made for under 30 days); (3) the employee has applied for the cash allowance one month after the commencement date of the leave and within 12 months of the conclusion date of the leave (exceptions to this latter condition exist).

The duration of child care leave shall be one year or less.
In addition, the State may provide support for part of living costs of the worker concerned and part of employment retention costs of an employer concerned when the employer allows the childcare leave to the worker.

Article 95 (Amount of Child-care Leave Benefits)
(1) The child-care leave benefits under Article 70 (2) of the Act
shall be 40/100 of the monthly ordinary wages calculated
pursuant to the Labor Standards Act from the start date of
child-care leave. Provided that in the case the payment period
of child-care leave benefits is less than one month, it shall be
40/100 of the amount calculated by multiplying the number of
child-care leave days by the daily ordinary wages calculated
pursuant to the Labor Standards Act.
(2) The maximum and minimum level of child-care leave
benefits under paragraph (1) are as follows:
1. If paid pursuant to the main part of paragraph (1)
A. Maximum: one million won per month
B. Minimum: 500,000 won per month
2. If paid pursuant to the proviso of paragraph (1)
A. Maximum: amount calculated by multiplying the number
of child-care benefit days by the amount calculated by dividing
a monthly one million won by the days of the month
concerned.
B. Minimum: amount calculated by multiplying the number
of child-care benefit days by the amount calculated by dividing
a monthly 500,000 won by the days of the month concerned.
(3) In case the amount remaining after subtracting 15/100 of
the child-care leave benefits pursuant to paragraph (1) and (2)
is less than 500,000 won, the amount divided under the
following subparagraphs shall be paid.
1. If paid pursuant to the main part of paragraph (1) and
subparagraph 1 of paragraph (2): 500,000 won per month
2. If paid pursuant to the proviso of paragraph (1) and
subparagraph 2 of paragraph (2): amount calculated by
multiplying the number of child-care benefit days by the
amount calculated by dividing 500,000 won by the days of the
month concerned.
(4) The 15/100 of the child-care leave benefits under
paragraph (1) and (2) (if paragraph (3) applies, the amount
remaining after the amount under each subparagraph of
paragraph (3) from the child-care leave payment under
paragraph (1) and (2) has been subtracted) shall be paid in a
lump-sum after calculating the sum in the case the worker
returns to the workplace concerned after the child-care leave
ends and continues to be employed for six months or more.

The employment Insurance Fund finances the childcare leave benefit.

(unpaid)

Please see PARENTAL LEAVE BENEFITS which also apply for adoptive parents.

The head of city/county/urban district shall take appropriate measures necessary for the health care of pregnant or nursing women (a woman who is within 6 months after the delivery) and infants, such as conducting periodical health checkups and vaccinations under the conditions as prescribed by the Presidential Decree, having the Mother-child health personnel call at their homes to conduct a health diagnosis and treatment and so on.
The head of city/county/urban district may render the following medical assistance to pregnant or nursing women, infants, and premature babies, etc., who are in need of any medical services: Diagnosis, provision of medicine or materials for medical treatment, treatments, operations and other treatments, accommodation in medical facilities, nursing, and transfer.
If the head of city/county/urban district deems it necessary to send a pregnant or nursing woman to a medical institution for her safe delivery and health, he shall do so, and if she desires to deliver a baby in her home, the head of city/county shall provide health personnel to help any mother and fatherless child with the delivery.

According to the website of the National Health Insurance Corporation, regarding childbirth expense when the insured or their dependents deliver babies at instead of at a care institution (hospital, clinic, maternity nurse), NHIC pays the childbirth expenses.
※ Exception: Childbirth in a foreign country (Article 49 of the National Health Insurance Act -Suspension of Benefits)
Subsidy Amount
KRW 250,000 (regardless of the number of children)

Support Business for Pregnancy & Child Birth Medical Expenses
NHIC supports a part of the co-payment of benefit or non-benefit medical expenses received by the insured (their dependents) for pregnancy or childbirth. (Implementation: 2008.12.15)

The National Health Insurance Program has three sources of funding: contributions, government subsidies, and tobacco surcharges.
In 2011 the monthly contribution the monthly average wage x Contribution Rate (Current: 5.64%)

Company
- Employer: 50%
- Employee: 50%
Private School:
- Employee: 50%
- Employer: 30%
- Government: 20%

*Self-employed Health Insurance
Contribution Score X Value Per Point
(currently KRW 165.4)
100%

A female worker who has an infant under 12 months shall be allowed to take twice a day a nursing break of at least 30 minutes.

Nursing breaks are paid.

If there is a request from the worker, the employer shall transfer her to a light duty.

An employer shall install nursing facilities necessary for childcare such as breast-feeding, nursing, etc to support employment of workers.

When an employer intends to have a woman aged 18 or older work from 10 pm to 6 am and on holiday, the employer shall obtain the consent of the worker concerned. An employer shall not have a pregnant woman work from 10 pm to 6 am and on holidays, except if the employer obtains permission from the Minister of Labour and the women agrees or the pregnant women requested the permit.

An employer shall not have a pregnant woman assigned to overtime work. An employer shall be forbidden to have women in whose case 1 year has not passed after childbirth do overtime work exceeding 2 hours per day, 6 hours per week, or 150 hours per year, even if provided for in a collective agreement.

An employer shall not have a pregnant female and person aged less than 18 work on holiday. However, this shall not apply in the cases described in any of the following sub-paragraphs and when the employer obtains permission from the Minister of Employment and Labor:
where there is a consent from the person aged less than 18,
where there is a consent from a female with less than one year after childbirth, and
where the female in pregnancy makes a request.
An employer, before obtaining permission from the Minister of Employment and Labor as stipulated in paragraph 2, shall consult in good faith with a worker’s representative of the business or workplace concerned as to whether there will be holiday work and its implementation methods for worker’s health and maternity protection.

If a pregnant female worker makes a request to take time off from work to receive a regular health checkup for pregnant women, the employer shall allow her to do so.
An employer shall not cut a worker’s wages on the ground that she takes time off for the health checkup mentioned above.

Not provided expressly as leave in case of sickness of a child, but the employee may ask for leave to take care of a child as it is explained in the field of parental leave.

An employer may extend the normal working hours in a particular week or in a particular day as provided except for workers who are pregnant.

An employer shall not have a pregnant woman or a woman in whose case 1 year has not passed after childbirth in any hazardous and dangerous work in terms of morality or health. An employer shall not employ women of the age of 18 years or over who are not pregnant in any work hazardous and dangerous for the function of pregnancy or delivery.

There are not special provisions for pregnant workers. The Occupational Safety and Health Act and enforcement decree regulate the duties of employers in order to guarantee safety and health in working places.
regarding Decree are general provisions.
Employers formulate monitoring plans on workers or workplaces, gathers samples, and make an analysis and assessment thereof to find out the actual state of work environment.
An employer shall have a supervisor of the workplace to carry out the safety and health related duties prescribed by the Presidential Decree.

There are not special provisions on risks assessments for pregnant workers.

There are not special measures provided in this regard for pregnant workers or nursing mothers. General duties in the employer’s head apply to guarantee safety and health of all workers in work places.

If there is a request, the employer shall transfer pregnant workers to a lighter duty.

There is not provided special leave during pregnancy or breastfeeding periods because of illness associated or derived from work.

Not mentioned.

It is only mentioned that employer shall not employ a female or minor under the age of 18 for any work inside a pit, except where the work is temporarily needed to perform the business as determined by Presidential Decree such as health, medicine, news report, news coverage,etc.

The employer shall not discriminate - directly or indirectly - against men or women based on gender (on account of sex, marriage, status in family, pregnancy or child-birth) in recruitment, hiring, with regard to retirement age or dismissal. An employer shall not enter into a labour contract stipulating marriage, pregnancy or child-birth of working women as a cause of retirement. The following cases are not considered to be discriminatory: (1) In case workers of specific gender are inevitably needed due to the nature of a job, (2) in case measures are taken to protect the maternity of working women in their pregnancy, childbirth, child-feeding, etc., or (3) in case the State and local governments or employers temporarily take special measures to give a preferential treatment to a particular gender to remove the existing discrimination.

Is not expressly prohibited.

A female worker before and after childbirth shall not be dismissed during a period of temporary interruption of work, as provided, and within 30 days thereafter. However, this shall not apply where the employer has paid a lump sum compensation or where the employer cannot continue to conduct a business.

An employer shall not dismiss or give any other unfavorable treatment to a worker on account of taking childcare leave, nor dismiss the worker concerned during the childcare leave period;provided that this shall not apply if the employer is not able to continue her/his business.

The burden of proof in settling the disputes related to the Equal Employment Act shall be borne by the employer.

*An employer shall allow the employee who ended the childcare leave of reduced working hours for childcare to return to the same work which the employee used to do before the childcare leave or to the work paying the equivalent level of wages. An employer shall i.a. provide support for a worker who completes maternity leave, childcare leave or working hour reduction for childcare purposes to adjust to work on return.

*After the end of the protective maternity leave, ther employer shall allow the female worker to return to the same work, or one with the same level of pay, as before the leave.