A Concise Guide to the Employment Ordinance
Chapter 6: Maternity Protection
Maternity Leave
A female employee employed under a continuous contract immediately before the commencement of her maternity leave and having given notice of pregnancy to the employer is entitled to the following periods of leave:
a continuous period of 10 weeks' maternity leave;
if confinement occurs later than the expected date of confinement, a further period equal to the number of days from the day after the expected date of confinement to the actual date of confinement;
the employee may enjoy an additional period of leave for not more than four weeks on the grounds of illness or disability due to the pregnancy or confinement.
Taking of Maternity Leave
With the agreement of her employer, 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, the employee shall commence her maternity leave four weeks before the expected date of confinement;
Maternity leave commences on the date of confinement if it occurs before the scheduled maternity leave. In this case, the employee should give notice of the date of confinement and her intention to take 10 weeks' maternity leave to her employer within seven days of her confinement.
 
 
Payment for Maternity Leave
An employee is eligible for maternity leave pay if:
she has been employed under a continuous contract for not less than 40 weeks immediately before the commencement of maternity leave;
she has given notice of pregnancy and her intention to take maternity leave to her employer after the pregnancy has been confirmed. For example, the presentation of a medical certificate confirming her pregnancy to the employer; and
she has produced a medical certificate specifying the expected date of confinement if so required by her employer.
Maternity leave should be paid for a period of 10 weeks and it should be paid on the normal pay day of the employee.
Maternity leave pay shall be equivalent to four-fifths of the employee's normal wages. For an employee employed on piece rates or whose daily wages vary from day to day, the maternity leave pay should be a sum equivalent to the average daily wages earned by her on the days she had worked during every complete wage period. The wage period should be a period of not less than 28 days and not more than 31 days immediately preceding or expiring on the commencement of her maternity leave.
Offences and Penalties
An employer who fails to grant maternity leave to a pregnant employee or fails to pay maternity leave pay to an eligible pregnant employee is liable to prosecution and, upon conviction, to a fine of $50,000.
Medical Examination
When the employee is absent from work to attend medical examination in relation to her pregnancy, post confinement medical treatment or miscarriage, any day on which she is absent shall be counted as a sickness day. The employee shall be entitled to the sickness allowance payable under the Ordinance (see Chapter 5).
Employment Protection
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:
the employee has been employed under a continuous contract, and
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 :
the employee is summarily dismissed due to her serious misconduct; or
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.
Offences and Penalties
Except for the circumstances provided above, it is an offence for an employer to dismiss a pregnant employee. The employer is liable to prosecution and, on conviction, to a fine of $100,000. Besides, the employer is also required to pay the following sums of money to the dismissed employee within 7 days after the day of termination:
wages in lieu of notice;
a further sum equivalent to one month's wages; and
10 weeks' maternity leave pay if, but for the dismissal, she would have been entitled to such payment.
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 remove her from that work.
The employer may, at his own expense, arrange for the employee to attend another medical examination by a registered medical practitioner within 14 days after receiving the medical certificate of the employee.
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 wages earned by the employee before the transfer.
Offences and Penalties
An employer who fails to comply with the above requirements is liable to prosecution and, on conviction, to a fine of $50,000.