Prenatal Leave V.S. Long-term Sick Leave

Ms. Zhang, who has a working age of 11 years, got pregnant in the fifth year in Company A. In order to prevent miscarriage, Ms. Zhang had asked for sick leave total of 6 months out of 7 months. In accordance with the rules and regulations of the company, Company A offered her with a sick pay of 100% of her wage. Thereafter, Ms. Zhang asked for another prenatal leave of 2.5 months to Company A, who approved and paid her 60% of her wage as sick pay. However, Ms. Zhang claimed that she should be paid 80% of her wage according to Implementation Measures of Shanghai on Law of the People’s Republic of China on the Protection of Women’s Rights and Interests (2007).

Then, should Company A pay an extra 20% of her wage for 2.5 months in addition to the treatment of sick leave. The answer is No.

According to Replies to Shanghai Labor Bureau on Questions of Treatment of Female Employee’s Childbirth after More Than Six Months of Prenatal Leave and Sick Leave ([82] Lao Xian No.2, in force), which is published by the Insurance and Welfare Department of State Bureau of Labor in 1982, for female workers who get pregnant in accordance with the Family Planning Policy, the company should manage their prenatal leave in accordance with stipulations of treatment of sick leave. That is to say, the treatment of sick leave applies to prenatal leave. Meanwhile, Interpretation of Issues concerning Regulations on Labor Protection for Female Workers in Shanghai (Hu Lao Bao Fa（90）No.109, in force), published by Shanghai Labor Bureau in 1990, further specifies that ‘female workers who have long-term sick leave shall not have prenatal leave’. So in Shanghai, to female workers who have applied for long-term sick leave yet still asked for a prenatal leave, the employer is entitled to give the treatment of sick leave. In this case, it’s legitimate of Company A to pay Ms. Zhang 60% of her wage as sick pay rather than to pay 80% of her basic wage as prenatal leave pay.

In practice, the prenatal leave in most places conforms to Article 7 of the Special Provisions on Labor Protection for Female Employees (‘a female employee of this Municipality may enjoy a 98-days maternity leave, including a 15-days leave prior to the childbirth’). That is to say, the prenatal leave is 15 days, and shall be included in the 98-days maternity leave, as is the case in Beijing, Zhejiang etc. Thus, we would suggest employers to find out if there are any local special stipulations on terms for the application of prenatal leave, before the approval of prenatal leave and corresponding treatment. For instance, Shanghai stipulates that prenatal leave is 2.5 months, but rather than applying for a prenatal leave merely on claim to prevent miscarriage, employees shall provide certification issued by medical care and health institutions above Grade Ⅱ, to certify that they have a history of habitual abortion, serious pregnancy syndrome, or complication of pregnancy that may affect normal birth. Besides, employers can stipulate rules that female workers should go rechecking in the appointed hospital to avoid their abnormal application for prenatal leave.