On 27 December 2015, Chinese lawmakers passed the Population and Birth Planning Amendment Law (Amendment). The Amendment, which is effective from 1 January 2016, ended the three-decade-old one-child policy and allowed married Chinese couples to have two children.
The key changes relevant to employers are as follows:
- Eligibility for extended maternity leave (and paternity leave, if applicable under local rules) is expanded. Married couples having their first and second child are eligible, regardless of their age. Previously, extended maternity leave were only granted to a married woman who gave birth to her and her husband's first child after she turned 24 (and paternity leave, in some locations, to her husband).
- The Amendment removed the language around extended marriage leave for eligible couples. Previously, extended marriage leave were granted to a person who got married for the first time at or above a certain age (23 for women and 25 for men).
The Amendment is not retroactive, i.e. it will not affect those who already met the conditions for rewards or benefits under the one-child policy prior to 1 January 2016.
However, the Amendment still leaves many issues unanswered for employers. Such issues include whether employees' pay during maternity leave for the second child will be paid out of social insurance, whether social maternity insurance contribution will be adjusted, and whether employees will still be entitled to extended marriage leave as a result of the removal of the relevant wording in the law. In addition, the Amendment does not address what entitlements or punishments (if any) may an employer apply to an employee who has more than 2 children.
Local governments are updating provincial and municipal regulations based on the new national policy. A few days after the Amendment was passed, Guangdong province passed implementing regulations granting extended maternity leave of 30 days and paternity leave of 15 days to eligible married couples having their first or second child. Extended marriage leave is repealed. Shanghai birth planning authorities also clarified that extended marriage leave will no longer be granted. Other locations will likely publish implementing regulations soon. In the meantime, companies are advised to remove any negative implications for employees giving birth to their second child and apply the same benefits to them as those who are giving birth to their first child. Companies should also follow closely the changes in local rules as result of the Amendment.