The Employment Ordinance, Cap. 57

Content

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.

* Eligible employees whose confinement occurs before 11 December 2020 are entitled to a continuous period of 10 weeks’ maternity leave.

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.

Is an employer required to pay a pregnant employee sickness allowance for absence due to attendance at medical examinations in relation to pregnancy? 

When the employee’s absence from work to attend medical examination in relation to her pregnancy is supported by an appropriate medical certificate* or a certificate of attendance**, any such day on which she is absent shall be counted as a sickness day. Under such circumstances, if the employee has accumulated sufficient number of paid sickness days, each sickness day shall be paid sickness allowance which is a sum equivalent to four-fifths of her average daily wages.

* The medical certificate should specify the number of days on which, and the nature of the sickness or injury on account of which, the employee is unfit for work.

** The certificate of attendance should state the employee’s attendance for a medical examination in relation to her pregnancy and the relevant date. It should be issued by a registered medical practitioner, a registered Chinese medicine practitioner, a registered midwife or a registered nurse. Certificate of attendance is not applicable to a medical examination in relation to pregnancy conducted before 11 December 2020.

(For details on sickness allowance under the Employment Ordinance, please refer to “A Concise Guide to the Employment Ordinance” published by the Labour Department.)

(1)   With the agreement of her employer, a pregnant employee may decide to commence her maternity leave from 2 to 4 weeks before the expected date of confinement.

(2)  If the employee does not decide on the date, or fails to secure her employer's agreement, the employee shall commence her maternity leave 4 weeks before the expected date of confinement.

Maternity leave commences on the date of confinement if it occurs before the above scheduled maternity leave.

NOTE: Confinement means the delivery of a child; miscarriage means the expulsion of the products of conception which are incapable of survival after being born before 24* weeks or pregnancy. If before 24 weeks of pregnancy an employee delivers a surviving child or the child prematurely dies after being born, it is not a case of miscarriage.

* Before 11 December 2020, miscarriage means the expulsion of the products of conception which are incapable of survival after being born before 28 weeks of pregnancy.

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:

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 :

Except for those specified circumstances (Click here to see A5 for details of the employment protection to pregnant employee) , it is an offence for an employer to dismiss a pregnant employee. The employer is liable to prosecution and, upon conviction, to a fine of $100,000. Besides, the employer is required to pay the following sums of money to the dismissed employee within 7 days after the day of termination:

The employee may also claim remedies for employment protection against her employer if she is dismissed other than for a valid reason as specified in the Ordinance.  (For details on the employment protection under the Employment Ordinance, please refer to “A Concise Guide to the Employment Ordinance” published by the Labour Department.)

* The one-month further sum is equivalent to the average monthly wages earned by an employee in the 12-month period preceding the date of termination of contract. If an employee is employed for less than 12 months, the calculation shall be based on the shorter period.  In calculating the average monthly 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.

** Eligible employees whose confinement occurs before 11 December 2020 or whose date of termination of the employment contract falls before 11 December 2020 are entitled to 10 weeks’ maternity leave pay.