Updates on Maternity Leave of Employees in Shanghai

On November 25th, 2021, the Standing Committee of Shanghai Municipal People’s Congress approved the new revision of the Regulation of Shanghai Municipality on Population and Family Planning (hereinafter referred to as “Shanghai Regulation”). The revision is related to the leave that employees can enjoy for birthing, which has caused heated discussion.

According to the Special Provisions on Labor Protection of Female Employees promulgated by the State Council on April 28th, 2012, all female employees shall be entitled to 98 days of maternity leave for birthing, 15 days of which can be taken before the birth. At the same time, before the revision of the Shanghai Regulation, female employees were entitled to a prolonged 30-day leave in addition to the 98-day maternity leave. Therefore, female employees in Shanghai could statutorily enjoy 128 days of maternity leave in total, while male employees could enjoy a 10-day paternity leave correspondingly.

After November 25th, 2021, with the implementation of the newly revised Shanghai Regulation, the maternity leave for female employees will be extended for an extra 30 days, which means that female employees in Shanghai can now enjoy 158 days of maternity leave. In addition, after the birth and before the child reaches the age of three, the spouse can enjoy parental leave for five days each year.

Regulation Application

For female employees who are enjoying the 128-day maternity leave, they can additionally enjoy the 30-day leave stipulated in the new Shanghai Regulation. For female employees who have enjoyed the 128-day maternity leave before November 25t, 2021 but had a baby after May 31st, 2021, they are also entitled to the additional 30-day leave as well. If the female employee had their baby before May 31st, 2021, she however cannot enjoy the leave extension.

When calculating the exact period of maternity leave, the first 98-day period stipulated is based on calendar days including both the weekends and national holidays. When calculating the following 60-day period, the weekends are included but national holidays shall not be included in the 60 days. Therefore, the supplementary 60-day leave period is 60 calendar days plus national holidays.

As for the 5-day parental leave each year before the child reaches 3 years old, the employees who already had their children after the revision of the Shanghai Regulation can still enjoy such paid-leave as long as their child has not reached the age of 3. For example, if the child was 1 years old on November 25th, 2021, the parents can enjoy 10-days of leave in total in the next two years.

Potential Influence

As employees are receiving better official welfare for having children, companies will be burdened more for paying for more leave days with full salaries. At the same time, companies need to take new management strategies for maternity and corresponding leave issues of employees so that business operations will not be significantly influenced by such increased levels of leave.

In addition, considering female employees will enjoy an extra 30 days of leave, companies may choose to hire more male employees to avoid such increased costs. Companies shall realize that such behavior may be considered as employment discrimination and may be punished correspondingly.

Conclusion

With China’s increasing consideration of the working environment of employees, companies shall realize that the previous corporate concept, which placed a large amount of pressure on production, may not be applied as rigidly moving forward. Currently, it is necessary for companies to find a better way to manage their employees efficiently, so as to be competitive in the market.

We at D’Andrea & Partners Legal Counsel constantly monitor the latest developments in the Chinese market. Please feel free to contact us at info@dandreapartners.com for more information.