What Hong Kong employers need to know about the latest updates on statutory maternity leave

Good news for all mothers-to-be who are employed in Hong Kong! The Government of Hong Kong SAR has just announced that female employees will receive an additional four weeks statutory maternity leave (SML) from 11 December 2020. Women who are eligible should take the additional leave continuously after their 10 weeks' SML comes to an end.

The Employment (Amendment) Ordinance 2020 sets out the following enhancements to maternity benefits:

Employers must provide eligible employees whose due date is on or after 11 December 2020 with an extra four weeks’ SML on top of the current 10 weeks.
Employers must pay the 14 weeks’ statutory maternity leave pay (SMLP) to eligible employees. The government will reimburse them for the extra four weeks’ SMLP afterwards.
SMLP will still be calculated at four-fifths of an employee’s average daily wages (there are specific calculations to determine this).
The amount reimbursed for the additional four weeks’ SMLP is calculated at four-fifths of an eligible employee’s average daily wages, up to HK$80,000 per employee (this cap may be reviewed and adjusted from time to time).
The Amendment Ordinance also covers two technical changes. These are:
1. Updating the definition of “miscarriage” so that women who have a miscarriage at any time from 24 weeks after conception (previously 28 weeks) will be eligible for maternity leave; and
2. Accepting a certificate of attendance issued by a professionally trained person as documentary proof that an eligible employee is entitled to sickness allowance for any day on which she has attended a pre-natal examination (currently a medical certificate certified by a registered doctor is required).

Details of how the government will reimburse employers for additional maternity leave paid to employees under the Amendment Ordinance are not yet available. Once we have received any updates about the reimbursement system, we will provide further information.

The four-week increase of paid SML will align Hong Kong with the International Labour Organization (ILO)’s recommendation as well as other jurisdictions, such as those of Japan and the People’s Republic of China (both of which provide 14 weeks’ SML covering pay at 66.7% and 100% of employees’ wages, respectively).

When the Amendment Ordinance comes into effect, it will not change the criteria that a female employee must meet to be entitled to maternity leave, as follows:

The employee has been employed under a continuous contract for not less than 40 weeks immediately before the commencement of scheduled maternity leave;
she has given notice of pregnancy and her intention to take maternity leave to her employer after the pregnancy has been confirmed (for example, the presentation of a medical certificate confirming her pregnancy to the employer); and
she has produced a medical certificate issued by a registered doctor specifying the expected due date if so required by her employer.

The enhancement of maternity benefits aims to safeguard the health of female employees and new born babies by aligning with the advantages of longer periods of maternity leave as stipulated by the ILO. According to the ILO, longer periods of maternity leave result in lower rates of premature births, pregnancy and postpartum depression, and reduces maternal, infant and child mortality.

It is expected that the 2020 Amendment Ordinance will have a positive impact on Hong Kong families and it is hoped that this will raise the low birth rate in Hong Kong in the future.

Joseph Hong
josephhong@bdo.com.hk