Legal update: Statutory Paternity LeaveMar172015
Hong Kong has finally introduced statutory paternity leave of up to 3 days for male employees employed in the private sector effective from 27 February 2015. A brief summary of the Hong Kong statutory paternity leave entitlement is as follows:
(1) Who is entitled to statutory paternity leave? Any male employee who is employed in Hong Kong under a continuous contract and is the father of a new-born child provided he complies with certain notification requirements before taking paternity leave. These include notifying his employer that he intends to take leave at least 3 months before the expected due date and of the expected leave dates or if he fails to do so, notifies his employer of the intended leave dates at least 5 days beforehand. An employee will be employed under a “continuous contract” if he is employed continuously by the same employer for 4 weeks or more and works at least 18 hours each week.
(2) When can statutory paternity leave be taken? Eligible employees are entitled to take up to 3 days’ paternity leave, in the period starting from 4 weeks before the expected date of delivery up until 10 weeks after the actual date of birth. The leave days can be taken together or separately.
(3) What information is the employer entitled to ask for? After being notified that an employee intends to take paternity leave, the employer is entitled to ask the employee to provide a signed written statement confirming he is the child’s father, the name of the mother and the expected or actual date of delivery before granting the leave. Once the child is born, the employee must also provide a copy of the child’s birth certificate naming him as the father or equivalent proof that he is the father of the child if the child is born outside Hong Kong.
(4) Is the paternity leave paid or unpaid? This depends on how long the employee has been working for his employer. The employee is entitled to be paid during any statutory paternity leave only if he has been employed under a continuous contract for at least 40 weeks before the date he goes on leave. He must also provide his employer with a copy of the birth certificate naming him as father within 12 months after the leave date or 6 months of his employment terminating, whichever is earlier.
(5) What is the rate of pay for statutory paternity leave? Eligible employees are entitled to paid paternity leave for each day equivalent to 80% of the employee’s average daily wages earned in the 12 months prior to the leave date excluding any period he was not paid his full wages.
(6) Does it only apply if the baby is born in Hong Kong? No, an eligible employee is still entitled to paternity leave if his child is born outside of Hong Kong.
(7) Is the employee entitled to more leave if he fathers twins or triplets? No. Eligible employees are entitled to up to 3 days paternity leave per confinement, irrespective of how many children are actually born.
(8) Is the employee entitled to take paternity leave if the child is born dead or dies after birth and no birth certificate is issued? Yes, if the employee can produce a medical certificate certifying the delivery of the child and, if required by the employer, a written statement confirming the birth and that the child was born dead or died after birth.
(9) Is an employee entitled to take paternity leave if he adopts a child? Not under the current legislation.
(10) What if the employer refuses to grant or pay for paternity leave when due? Failure to grant or pay paternity leave to an employee who is entitled to it will be an offence and the employer may be liable on conviction to a fine of up to $50,000.
(11) As an employer, do I need to do anything as a result of this law change?
Employers who are notified that an employee intends to take paternity leave should ask for:
i. a written statement from the employee confirming he is the child’s father, the name of the mother and the expected or actual date of delivery;
ii. confirmation as to when the employee wishes to take the paternity leave; and
iii. a copy of the child’s birth certificate naming the employee as the father or equivalent proof after the child is born.
Employers should ensure that paternity leave is granted and paid to all eligible employees.
Employers may also wish to check the terms of their employment contracts, handbooks and policies and consider:
i. whether these should be updated to include reference to the entitlement to statutory paternity leave if other leave entitlements are expressly mentioned (although the employee will remain entitled to take statutory paternity leave irrespective of whether it is mentioned in his employment documents); and
ii. whether they contain any terms that are inconsistent with the legislation and so need to be amended, if for example, the handbook had provided for paternity leave but the entitlement was more limited than is now provided for by statute.
Kim Boreham / Rowan Varty