A female employee under a continuous contract after giving notice of pregnancy and intention to take maternity leave, is entitled to:
- a continuous period of 14 weeks' maternity leave (effective from 11 December 2020 onwards)*
- a period equal to the number of days confinement occurs later than the expected date of confinement
- an additional period of leave for up to four weeks may be taken on the grounds of illness or disability due to the pregnancy or confinement
* NOTE: For employees' actual date of confinement before 11 December 2020, their maternity leave entitlement will follow the current entitlement of 10 weeks. However, if the actual date of confinement is on or after 11 December 2020, then the employee will be entitled to 14 weeks of maternity leave and additional maternity leave pay (where eligible), even if the notice of pregnancy is given before 11 December 2020.
Taking Maternity Leave
A pregnant employee may decide to commence her maternity leave from two to four weeks before the expected date of confinement. If the employee does not decide on the date, or fails to secure her employer's agreement, her maternity leave shall commence four weeks before the expected date of confinement.
Maternity leave will commence on the date of confinement if it occurs before the scheduled maternity leave. The employee should give notice of the date of confinement and her intention to take 10 weeks of maternity leave to her employer within seven days of her confinement.
Maternity Leave Pay
An employee is eligible for maternity leave pay if she has:
- been employed under a continuous contract for at least 40 weeks immediately before the commencement of scheduled maternity leave.
- given notice of pregnancy and her intention to take maternity leave to her employer after the pregnancy has been confirmed e.g. produced a medical certificate confirming pregnancy or specifying the expected date of confinement.
Maternity leave should be paid for a period of 14 weeks, on the regular pay day of the employee.
The daily rate of maternity leave pay is 80% of the average daily wages earned by an employee in the 12-month period preceding the first day of maternity leave. If an employee is employed for less than 12 months, the calculation shall be based on the shorter period.
An employee's absence from work to attend medical examination in relation to her pregnancy, post confinement medical treatment or miscarriage, with appropriate supporting medical certificate, shall be counted as sickness day(s).
An employer is prohibited from dismissing a pregnant employee from the date on which she is confirmed pregnant by a medical certificate to the date on which she is due to return to work upon the expiry of her maternity leave if she:
- has been employed under a continuous contract
- has served a notice of pregnancy to the employer
If a pregnant employee is dismissed by her employer before she has served a notice of pregnancy, she may serve such notice immediately after being informed of her dismissal. Under such circumstances, her employer must withdraw the dismissal or the notice of dismissal.
An employer may dismiss a pregnant employee:
- due to serious misconduct
- for reasons other than pregnancy during the employment probation period of not more than 12 weeks
Prohibition of Assignment of Heavy, Hazardous or Harmful Work
If a pregnant employee produces a medical certificate with an opinion as to her unfitness to handle heavy materials, work in places where gas injurious to pregnancy is generated, or do other work injurious to pregnancy, the employer may not allocate such work to the employee.
If the employee is already performing such work, the employer shall within 14 days after receiving such request remove her from that work. Regardless of whether the medical certificate produced by the employee was issued by a registered medical practitioner or registered Chinese medicine practitioner, an employer may, within 14 days after receiving such medical certificate, at the employer’s own expense, arrange for the employee to attend another medical examination conducted by a registered medical practitioner or registered Chinese medicine practitioner named by the employer to obtain a second opinion as to the employee’s fitness to undertake the work at issue.
The Employment Ordinance provides that if the earnings of the employee is affected as a result of her transfer from heavy, hazardous or harmful work, the maternity leave pay or the payment for termination of employment shall be calculated on the basis of the average daily or monthly (as appropriate) wages earned by the employee in the 12-month period preceding the transfer.
Employees shall submit medical certificates issued by registered medical practitioners, registered Chinese medicine practitioners or registered midwives, if so required by employers where applicable, to be eligible for maternity protection.