Protections for Female Employees under Chinese Law

In China, the primary laws governing legal rights for female employees are the Law on Protection of Women’s Rights and Interests (the “Women’s Law”), issued in 1992 and amended in 2005, and the 1988 Regulations on Labor Protection for Female Workers and Employees (the “Regulations”).

The women’s workplace protections under these laws revolve around maternity issues and sexual harassment. This advisory provides a brief overview of the specific legal protections in these two areas and how they are administered, as well as some basic information to help employers comply with Chinese law in both areas.

Maternity

Maternity leave

In addition to the Women’s Law, provincial and city-level governments have promulgated local regulations to implement nationally mandated protections for women during pregnancy, childbirth and nursing. An employee whose pregnancy is in accordance with the state family planning policy is generally entitled to 90 days’ maternity leave, which includes weekends and public holidays.

In certain cases, women are entitled to additional leave, such as 30 days extra for late childbirth (i.e., the mother is 24 years of age or older at childbirth), 15 days extra for difficult labor, and/or 15 days extra for multiple births.

With the consent of her employer, a pregnant employee may choose the starting and expiration dates of her maternity leave. Maternity leave pay must be equivalent to the wages earned by a female employee preceding her maternity leave.

Appropriate leave should also be granted for miscarriages.

Employment protection

An employer is prohibited, without statutory causes, from dismissing a pregnant employee, beginning on the date she is confirmed pregnant by medical certificate until the expiration of her nursing period (i.e., 12 months after childbirth). A pregnant employee who is terminated is entitled to compensation equal to two times the statutory severance pay. In general, severance pay is calculated based on an employee’s monthly wage multiplied by her years of service: one month’s salary for each year of service, subject to a cap stipulated by the local government.

Maternity insurance

According to the Interim Regulations on the Collection and Payment of Social Insurance Premiums issued in 1999, an employer is obligated to contribute a maternity insurance premium to the local social insurance fund for all employees. Pregnant employees who have continually contributed to the social benefits fund are paid insurance stipends. Insurance payment covers a pregnant employee’s hospital expenses.

Maternity insurance funds are locally administered, and maternity insurance premiums vary from city to city. In Shanghai, the rate is 0.5 percent of an employee’s wage.

Local employees

China’s family planning policies generally limit a married couple to one child (different localities may have different detailed requirements and exceptions). For Chinese nationals, some maternity benefits may be subject to an employee’s full compliance with the policies.

Expatriate employees

In general, China’s employment-related laws and regulations govern the employment relationship between an employer and an employee within the territory of China. Therefore, an expatriate who enters into an employment agreement with an overseas company, rather than a subsidiary registered in China, will not be protected under Chinese law.

With respect to an expatriate who signs an employment agreement with a domestic employer, the laws allow an employer and employee to negotiate, in the employment agreement, employment conditions that differ from the relevant provisions of Chinese law.

However, if a dispute arises from an issue on which such an employment agreement is silent, and if the dispute is brought before a court or arbitration committee, the judicial decision may hold that the issue should be resolved in accordance with the relevant provisions of law (except with regards to certain provisions that apply only to Chinese nationals, such as compliance with family planning policies and the maternity insurance premium).

An expatriate is eligible for maternity protection only when she enters into an employment agreement with a domestic employer, and where the employment agreement does not prescribe her maternity benefits.

Prohibited work

The Regulations also contain maternity provisions. The following work conditions are prohibited for pregnant women:

• Work classified as being of Grade III labor intensity;
• Any work considered taboo for pregnant women;
• Extended working hours; and
• For nursing women, work classified as being of Grade III labor intensity, any work considered taboo during nursing, extended working hours and night shifts.

Moreover, alternative work should be assigned to pregnant women unable to perform their usual work. Time taken for prenatal examinations should also be counted as a part of women’s working time.

Sexual harassment

Until 2005, when a prohibition was added to the Women’s Law, there was no specific legal provision against sexual harassment in China. The amendment empowers women to lodge complaints with relevant government agencies. It provides a legal basis for handling such issues but lacks a definition of “sexual harassment” or provisions for relief to women involved.

Some local governments have taken it upon themselves to implement regulations. Guangdong Province, for example, amended its local regulations to define sexual harassment as inappropriate behavior, language, characterizations, pictures, images or digital information about sex.

Guangdong’s regulations specify that companies and administrators of public places are responsible for preventing and stopping sexual harassment by creating an appropriate environment and implementing a suitable investigation system for complaints. The amended regulations specify that governmental and non-governmental organizations have a responsibility to accept complaints, make investigations, collect evidence to stop violations and provide temporary shelter for victims.

Under regulations promulgated by Sichuan Province, an employer must pay compensation to victims of sexual harassment if the employer is at fault. Sichuan’s legislation targets sexual harassment using words, letters, images and body language. Employers are required to adopt measures to prevent sexual harassment on their premises.

General

Under the Regulations, recruitment of women must not be refused by employers who can provide work that is suitable for female employees. On the other hand, women are prohibited from working in underground mines or engaging in work classified as being of Grade IV labor intensity, or "any other work considered inappropriate for women." During their menstruation period, female employees must not be engaged in work in high altitudes, low temperatures, cold water or in work classified as being of Grade III labor intensity.

Conclusion
 
Chinese law mandates specific maternity leave entitlements for female employees and requires an employer to contribute maternity premiums to the local social insurance fund. Maternity protections differ for local and expatriate employees. Certain labor restrictions are in place for women in general and others for pregnant women. China’s current sexual harassment statutes are general, but some provinces have their own regulations, placing both liability and the burden of prevention on employers.