Managing tips regarding female employees who return to work before the maternity leave has been expired

Ms. Ning is a financial staff. She started working on the first day after giving birth and returned to work one month later. The company paid her salary as normal, and she also received maternity allowances. Later, the company requested Ning to return the salary paid during her maternity leave on the grounds that she had abused her power to issue herself a salary during that period. However, both the labor arbitration commission and the court rejected the company’s request. (See (2023) Jing 0111 Min Chu No. 15574 judgment for details)

This is a typical case regarding salaries for female employees who return to work before the maternity leave has been expired.

According to regulations, the social security fund issues maternity allowances to female employees during the maternity leave. If there is a difference between the maternity allowance and the female employee’s salary, the company shall make up the difference. However, there are no legal provisions on whether female employees who return to work early from maternity leave can receive both maternity allowances and salaries. Nevertheless, a few provinces and cities have made relevant regulations. For example, Article 37 of the “Guiding Opinions on Handling Certain Issues in Labor Dispute Cases (Trial Implementation)” in Zhejiang Province stipulates that female employees who return to work early from maternity leave can receive both maternity allowances and salaries. In other provinces and cities without explicit regulations, in judicial practice, the majority courts held the same opinion as Zhejiang province, such as cases (2023) Yue 01 Min Zhong No. 29835, (2024) Yu 0156 Min Chu No. 3875, etc.), while the minority courts hold the opposite opinion, such as Luoyang (2025) Yu 0303 Min Chu No. 514, Xi’an (2022) Shan 01 Min Zhong No. 12328, etc.. In those cases based on the opposite opinion, the courts gave the main reason as the premise for the payment of maternity allowances is “suspension of work due to childbirth”, and returning to work early is a voluntary waiver of rights by the female employee. Therefore, regarding the salaries and payment standard to such female employees, it is recommended to be agreed with the female employees based on the comprehensive consideration of the local judicial rules, the working hours and intensity of those female employees, and other factors.

The work arrangement for such female employees also deserves attention. First of all, it should be noted that due to the mandatory special protection for female employees, it is not recommended to require female employees to return to work early unless there are special circumstances. Secondly, when a female employee requests to return to work early and the company also wishes to do so, it should be aware that it is not reasonable to arrange such female employee to work as normal due to her health and baby’s breastfeed needs. It would be better to arrange such employee’s work by adopting flexible working hours, reducing daily working hours, reducing working days, or allowing home office, etc. On this basis, in order to avoid disputes, the company could make an agreement with such employee in written on work arrangements, requirements, and corresponding remuneration.

Finally, companies should also consider to set special evaluation rules and standards for performance appraisal, which could be reflected in salary assessment, bonuses, and other welfares accordingly.