17 January, 2019
Further to the Chief Executive’s proposal to extend the statutory maternity leave (ML) from the current 10 weeks to 14 weeks, the Labour and Welfare Bureau recently submitted a Review of Statutory Maternity leave (Review) to the Legislative Council Panel on Manpower, providing detailed recommendations and technical amendments to be made to certain provisions of the Employment Ordinance (Cap. 57) (EO) regarding ML.
Recommendations
The Review sets out the following details regarding the extension of ML from 10 weeks to 14 weeks:
1. The proposed increase of ML should take effect in one go and the extended period would become the 11th to 14th weeks of ML, to be taken continuously after the 10 weeks’ ML;
2. The rate of the ML pay for the extra 4 weeks of ML should be maintained at four-fifths of the employees’ average daily wages;
3. The cost for the extra 4 weeks ML pay would be borne by the government. The employer will have to pay the employee first on the normal pay day and then seek reimbursement from the government upon providing proof of payment;
4. The cap for the extra 4 weeks ML pay should be $36,833 per employee, which is equal to four-fifths of the wages of an employee with a monthly wage of $50,000 in four weeks.
Technical amendments to EO
The Review also proposes to amend the EO in the following manner:
1. To change the definition of “miscarriage” to mean “the expulsion of the products of conception which are incapable of survival after being born before 24 weeks of pregnancy”, as opposed to 28 weeks of pregnancy in the current definition. In this regard, the employee’s entitlement will be changed as follows:
|
Existing position |
Proposed change |
|
An employee will only be entitled to sick leave if she encounters cessation of pregnancy between 24 weeks and before 28 weeks of pregnancy. |
An employee who has suffered miscarriage in the 24th week of pregnancy or after will be entitled to ML, provided that other conditions are satisfied as well. |
2. To require the employer to pay sickness allowance to an employee who has attended pre-natalmedical examination in relation to her pregnancy so long as she can produce relevant documentary proof of having attended that medical examination. In this regard, the employee’s entitlement will be changed as follows:
|
Existing position |
Proposed change |
|
An employee will be entitled to sickness allowance only if she can produce a medical certificate in relation to the medical examination. |
An employee will be entitled to sickness allowance if she can produce a certificate of attendance or other documentary proof of having attended that medical examination. |
Conclusion
The government will proceed to draft the legal instrument to give effect to these proposed changes. It intends to introduce a bill to amend the EO to the Legislative Council in late 2019. Employers should take note of the proposed changes and prepare for the necessary measures to ensure compliance with the amended EO once it comes into effect.
For further information, please contact:
Vickie Leung, Deacons
vickie.leung@deacons.com.hk
