[Legal Question] Do female employees enjoy maternity leave when giving birth to their third child?
Letters from readers
Hello editor!
I am a migrant worker in Beijing, currently working in a warehouse management in a technology company in Beijing. I had two daughters before, and now I am pregnant with a third child. I filed an application for maternity leave with the company's human resources department before giving birth, but the human resources department informed me that since I was giving birth for the third time, it violated the state's family planning policy and did not enjoy the treatment of maternity leave and maternity wages Filling in the leave approval form only allows me to take leave, and there is no salary during the maternity leave.
Excuse me, is the statement of the company's human resources department correct?
Reader: Wen Jing
For you
Hello quiet!
Your letter has been received. In response to your question, our reply is as follows:
First of all, according to the provisions of Article 18 of the Population and Family Planning Law, the state encourages a couple to have two children. Combined with the law and the regulations of population and family planning regulations in various places, a couple can only have two children. Because your birth this time belongs to the third child, this act violates the law and belongs to illegal birth.
Secondly, maternity leave is a vacation system established to ensure that women workers who give birth have sufficient time to recover their health and the healthy growth of newborns. According to Article 7 of the "Special Regulations on Labor Protection for Female Workers", female workers enjoy 98 days of maternity leave during maternity, of which 15 days can be taken before giving birth; 15 days of maternity leave are added to those who are difficult to give birth; Infants, increase maternity leave by 15 days.
At the same time, according to Article 18 of the Regulations of Beijing Municipality on Population and Family Planning, female employees of government agencies, enterprises, institutions, social organizations and other organizations who have children in accordance with the regulations shall enjoy maternity leave in addition to maternity leave prescribed by the state.30 Days, his spouse enjoys 15 days of paternity leave.
It can be seen from this that the state stipulates that female employees enjoy 98 days of statutory maternity leave, and this provision does not exclude female employees who have illegal births. In the case of female employees legally giving birth, in addition to 98 days of statutory maternity leave, they can also enjoy 30 days of incentive leave. Since your current third childbirth is illegal childbirth, you will no longer enjoy 30 days of incentive leave, but you can still enjoy 98 days of maternity leave.
Thirdly, according to the provisions of Article 8 of the “Special Regulations on Labor Protection of Female Employees”, the maternity allowance for female employees during maternity leave shall be paid by the maternity insurance fund according to the standard of the employer ’s average monthly salary of the employee in the previous year; Those who have not participated in maternity insurance shall be paid by the employing unit in accordance with the standard of wages before maternity leave for female employees. Only female employees who meet the birth control policy can enjoy reimbursement and allowances for maternity insurance, while female employees who violate the policy cannot obtain reimbursement and maternity leave allowances through maternity insurance and do not enjoy maternity insurance treatment.
Finally, the implementation of family planning is the basic national policy of our country and the obligation of every citizen. The lawful rights and interests of family planning are protected by law. Because your current birth control violates the family planning policy, it is illegal. Therefore, the Ministry of Human Resources informs you that you are not eligible for maternity leave pay during maternity leave, but you still have 98 days of maternity leave.
Yao Junchang, lawyer of Beijing Weiheng Law Firm
Lu Yue