Statutory Maternity Leave Rights in Hong Kong: Plain and Simple

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When it comes to managing a team, there’s always a lot on your plate. One area that often brings up questions is maternity leave -- especially when you’re trying to ensure you’re doing right by your employees and staying compliant with the law. Issues around statutory maternity leave rights in Hong Kong are more common than you might think. According to the Equal Opportunities Commission (EOC), pregnancy discrimination consistently ranks among the top five complaints under the Sex Discrimination Ordinance, with about 20-25% of all complaints related to employment matters involving pregnancy discrimination. This statistic serves as a stark reminder of the importance of getting maternity leave policies right, not just for legal compliance but also for the well-being of your employees.

Moreover, a survey by The Women’s Foundation in Hong Kong found that 27% of women experienced workplace discrimination due to pregnancy or maternity leave . These figures highlight how crucial it is for employers to fully understand maternity leave. As an HR professional or a founder, your goal is to create an environment where employees feel supported during this significant time in their lives. Here’s where we come in. We wrote this guide so you don’t have to parse through pages of information – we’ll will walk you through everything you need to know about statutory maternity leave rights in Hong Kong in a single article. 

What Are Statutory Maternity Leave Rights in Hong Kong?

Statutory Maternity Leave (SML) in Hong Kong gives pregnant employees the legal right to take paid time off work around the time of childbirth. This period allows mothers to rest, recover, and care for their newborns without the stress of losing their job or income.

Key Details You Need to Know

• Leave Duration: Employees are entitled to 14 weeks of paid maternity leave.
• Pay Rate: The leave is paid at 80% of the employee’s average daily wages.
• Eligibility Requirements: To qualify, employees must have been under a continuous contract for at least 40 weeks before their expected due date.
• Notice Requirement: Employees must notify their employer of their pregnancy and intention to take maternity leave at least three months before the expected delivery date.

Who Is Eligible for Maternity Leave in Hong Kong?

The first thing to get right is understanding who is eligible for maternity leave. Let’s take a closer look together.

Continuous Employment for 40 Weeks

To be eligible for statutory maternity leave, an employee must have worked under a continuous contract with the same employer for at least 40 weeks before the expected date of childbirth. Continuous employment generally means that there has been no significant break in service, and the employee works at least 18 hours a week.

Example:
Imagine Sarah, an HR manager at a local startup, has been working full-time for her company for over a year. She discovers she’s pregnant and wonders if she’s eligible for maternity leave. Since she’s been employed continuously for well over 40 weeks, she qualifies for statutory maternity leave.

Informing the Employer

Employees must notify their employer of their pregnancy and intention to take maternity leave at least three months before the expected delivery date. The notice can be either in writing or verbal, but it’s always a good idea to have it in writing to avoid any potential misunderstandings.

Example:
If Sarah’s due date is January 15th, she should inform her employer of her pregnancy and her maternity leave plans by October 15th to comply with the three-month notice requirement.

How Maternity Leave Is Structured

The structure of maternity leave is designed to provide enough time for mothers both before and after childbirth. Let’s break down how this leave is divided and what that means for you as an employer.

Taking Leave Before the Birth

Of the 14 weeks of statutory maternity leave, up to 4 weeks can be taken before the expected date of delivery. This pre-natal leave allows the mother time to rest and prepare for the baby’s arrival. The start date is flexible and can be agreed upon between the employee and the employer.

Example:
Sarah decides to start her maternity leave two weeks before her due date. This means her maternity leave would begin on January 1st, giving her time to rest and get everything ready for the baby.

Leave After the Baby Is Born

The remaining weeks of maternity leave are taken after the baby is born, giving the mother time to recover and bond with her newborn.

Example:
If Sarah’s baby is born on January 15th and she took two weeks of pre-natal leave, she would have 12 weeks of post-natal leave remaining, which would take her to April 8th.

Adjustments for Early or Late Births

If the baby is born earlier than expected, the remaining leave is still taken after childbirth. Conversely, if the baby is born later than expected, the maternity leave will be extended to cover the delay.

How Maternity Leave Pay Is Calculated

Here comes the challenging part. One of the most common concerns for expectant mothers is how much they will be paid during their maternity leave. Here’s how to calculate it accurately.

The Pay Calculation Formula

Maternity leave pay is set at 80% of the employee’s average daily wages (ADW). This calculation is based on the average wages earned over the 12 months immediately before the start of the maternity leave. If the employee has worked for less than 12 months, the average over the actual period worked will be used.

Example:
Let’s say Sarah’s average daily wage is HKD 1,000. Her maternity leave pay would be 80% of that, which is HKD 800 per day. If she takes the full 14 weeks (98 days) of maternity leave, her total pay would be HKD 78,400.

However, we all know ADW isn’t as straightforward to calculate as it seems. This is where Talenox comes into play. We take all the necessary information required to calculate an employee’s daily wage, factor in all the edge-case scenarios, and compute the amount automatically for you. Not convinced? Give us a try – free for your first 30 days.

When Is Maternity Leave Pay Issued?

Employers are required to pay maternity leave wages on the regular payday of the employee. This means Sarah would continue to receive her pay just as she normally would while she’s on leave.

What You Need to Know About Dismissal During Maternity Leave

Hong Kong law offers robust protections for employees on maternity leave. It’s important for employers to be aware of these to avoid legal troubles.

Dismissal Restrictions

Employers are not allowed to dismiss an employee during her maternity leave. If an employer terminates an employee under these circumstances, it is considered unlawful.

However, there are a few rare exceptions where an employer might terminate an employee during maternity leave, such as cases of serious misconduct. However, these cases are exceptional and require substantial proof.

Example:
Sarah’s employer cannot legally dismiss her while she’s on maternity leave unless there is a very serious reason, such as gross misconduct. Any wrongful dismissal could lead to legal consequences for the employer.

Handling Complications and Special Circumstances

Unfortunately and sadly, pregnancy doesn’t always go according to plan, and Hong Kong law has provisions for these less-than-ideal scenarios.

What Happens in the Case of Miscarriage or Stillbirth?

If a miscarriage or stillbirth occurs after 24 weeks of pregnancy, the employee is still entitled to statutory maternity leave. If the miscarriage occurs before 24 weeks, maternity leave isn’t applicable, but the employee may be entitled to other forms of leave, such as sick leave. We do like how compassionate this sounds.

Example:
If Sarah suffers a miscarriage at 25 weeks, she is still entitled to her full maternity leave and pay. This gives her the time she needs to recover without the added worry of returning to work immediately.

Dealing with Pregnancy-Related Illness

Sometimes, an employee is unable to return to work at the end of her maternity leave due to illness or complications related to pregnancy. In cases like this, she may be entitled to sick leave. However, a medical certificate from a registered doctor is required to support this.

Example:
If Sarah experiences complications after childbirth and her doctor advises additional rest, she can apply for sick leave beyond her statutory maternity leave, provided she submits the necessary medical documentation.

Helping Employees Transition Back to Work

Returning to work after maternity leave can be a significant adjustment for new mothers. As an employer, it’s important to understand the legal rights of returning employees and to offer support during this period.

The Right to Return to the Same Job

Employees have the right to return to the same position they held before their maternity leave. If this position is no longer available, the employer must offer a comparable position with the same terms and conditions.

Example:
When Sarah returns to work, her employer is legally required to reinstate her to her previous role as an HR manager or offer her an equivalent position if her original job is no longer available.

Considering Flexible Working Arrangements

Employers in Hong Kong are encouraged to consider flexible working arrangements for employees returning from maternity leave. This might include part-time work, flexible hours, or remote working options.

Example:
Sarah might request to work part-time for the first few months after her maternity leave. Her employer should consider this request and, if possible, accommodate her needs while balancing the needs of the business.

What Employers Need to Do to Stay Compliant

Ensuring compliance with statutory maternity leave regulations is crucial for employers. Failing to do so can result in legal penalties and damage to your company’s reputation.

Keep Detailed Records

Employers must maintain accurate records of their employees’ maternity leave, including start and end dates, pay calculations, and any communication related to leave. These records should be kept for at least six years.

Example:
Sarah’s employer should keep detailed records of her maternity leave, including her notice of pregnancy, maternity leave pay, and any related correspondence. These records must be available for inspection by the Labour Department if required.

Communicate Clearly

It’s essential for employers to maintain open and clear communication with employees regarding their maternity leave. This includes providing information about their rights, explaining the leave application process, and ensuring that they understand the pay structure.

Example:
Sarah’s employer should have a clear conversation with her about her maternity leave entitlements, how her pay will be calculated, and what to expect when she returns to work. This helps prevent misunderstandings and ensures that both parties are on the same page.

Handling Disputes

If there is a disagreement between the employer and the employee regarding maternity leave, the employer should attempt to resolve the issue internally through discussion or mediation. If the issue cannot be resolved, either party may seek assistance from the Labour Department.

Example:
If Sarah feels that her maternity leave pay has not been calculated correctly, she should first discuss this with her employer. If they cannot resolve the issue, Sarah or her employer can seek help from the Labour Department to mediate the dispute.

FAQs About Statutory Maternity Leave in Hong Kong

1. Can an employer refuse to grant maternity leave?

No, employers cannot refuse to grant maternity leave if the employee meets the eligibility criteria and has provided the required notice.

2. What happens if an employee doesn’t provide three months’ notice?

If an employee fails to provide the required three months’ notice, she may still be entitled to maternity leave, but the employer may request a medical certificate confirming the pregnancy and expected due date.

3. Are part-time employees eligible for statutory maternity leave?

Yes, as long as the part-time employee meets the eligibility criteria, including continuous employment for at least 40 weeks, she is entitled to statutory maternity leave.

4. What if an employee decides not to return to work after maternity leave?

If an employee decides not to return to work after maternity leave, she is typically required to provide the notice of resignation according to her contract. The employer is still obligated to pay her for the maternity leave she took.

5. Can maternity leave be extended?

Maternity leave itself cannot be extended, but if the employee faces health issues related to pregnancy or childbirth, she may take sick leave, provided she has a medical certificate.

6. How should maternity leave be calculated for employees with irregular working hours?

For employees with irregular working hours, maternity leave pay is calculated based on the average daily wages over the 12 months preceding the maternity leave, or over the actual period worked if it’s less than 12 months.

Conclusion

Understanding and managing statutory maternity leave in Hong Kong is essential for creating a supportive work environment and staying compliant with the law. As an HR professional or a business founder, your role is to ensure that your employees feel valued and supported during this significant time in their lives. By following the guidelines laid out in this article, you can confidently handle maternity leave requests, support your team, and maintain a healthy, compliant workplace.

To make this process even easier, Talenox offers intuitive HR software that automates payroll, leave management, and ensures compliance with local regulations like statutory maternity leave. With Talenox, you can stay on top of these requirements effortlessly, giving you more time to focus on what really matters--taking care of your people.