Maternity Protection

Please note that the information below is provided by the Hong Kong Labour Department.

As both Employer and Helper
1.  What are the criteria for PAID maternity leave?
2.  How is maternity leave pay calculated? When should it be paid?
3.  Can an employer dismiss a pregnant employee?

1.What are the criteria for PAID maternity leave?

An employee is eligible for 14 weeks’ PAID maternity leave if-

1. she has been employed under a continuous contract for NOT less than 40 weeks immediately before the commencement of scheduled maternity leave;
2. she has given notice of pregnancy and her intention to take maternity leave to her employer after the pregnancy has been confirmed, such as by presenting a medical certificate confirming her pregnancy to the employer; and
3. she has produced a medical certificate specifying the expected date of confinement if so required by her employer.

In case the length of employment service under a continuous contract is less than 40 weeks immediately before the commencement of scheduled maternity leave, the employee is eligible for 14 weeks’ maternity leave WITHOUT PAY if the employee has given notice of pregnancy and her intention to take maternity leave to her employer after the pregnancy has been confirmed.

2.How is maternity leave pay calculated? When should it be paid?

The daily rate of maternity leave pay is a sum equivalent to four-fifths of the average daily wages earned by an employee in the 12-month period preceding the first day of the maternity leave. If an employee is employed for less than 12 months, the calculation shall be based on the shorter period. The 4-week maternity leave pay for the 11th to 14th week of the maternity leave is subject to a cap of $80,000. In calculating the average daily wages, an employer has to exclude (i) the periods for which an employee is not paid her wages or full wages, including rest day, statutory holiday, annual leave, sickness day, maternity leave, sick leave due to work injuries or leave taken with the agreement of the employer, and any normal working day on which the employee is not provided by the employer with work; together with (ii) the sum paid to the employee for such periods.

Maternity leave pay should be paid on the normal pay day of the employee. Employers, after payment of all maternity leave pay on the normal pay day, may apply to the Government for reimbursement of the 11th to 14th weeks’ maternity leave pay payable and paid under the Employment Ordinance. For details, please refer to the Reimbursement Easy Portal at www.rmlps.gov.hk/eng/home.

3.Can an employer dismiss a pregnant employee?

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:

1. the employee has been employed under a continuous contract, and
2. she 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.

However, the employer is not prohibited from dismissing a pregnant employee under the following circumstances:

1. the employee is summarily dismissed due to her serious misconduct; or
2. where it has been expressly agreed that the employment is on probation, the employee is dismissed for reasons other than pregnancy during the probation period of not more than 12 weeks.