What you should know about paternity leave
The Legislative Council has finally passed the long-awaited laws bringing in statutory paternity leave in Hong Kong. From February 27, 2015, the Employment Ordinance will give male employees working in the private sector the same paternity leave right as their government counterparts, namely to take up to three days of paternity leave in recognition of the birth of their child.
Many employers in Hong Kong already offer similar entitlements to their male employees. But what does the new Part IIIA of the Employment Ordinance look like, what does it mean in practice and what should employers be thinking about to prepare themselves for the upcoming change?
In order to be eligible for statutory paternity leave, an employee must be the father of the child in question, and be employed under a continuous employment contract immediately prior to taking the paternity leave.
There is no need for the father to be married to the mother of the child in order to be entitled to the leave.
Eligible employees are entitled to take up to three days of paternity leave. There is no entitlement to additional days for a multiple birth. The days of paternity leave may be paid or unpaid depending on certain requirements and the employee can choose to take the three days of leave consecutively or separately.
An employee may take paternity leave any time between four weeks prior to the expected date of delivery of the child birth and the 10 weeks following the actual date of birth.
In order to claim the entitlement, the employee must comply with certain notification requirements. He can choose to notify his employer of his intention to take paternity leave at least three months before the expected delivery date, together with the intended date of his leave. Alternatively, he must notify his employer at least five days prior to each intended date of leave.
Upon receiving a request, the employer can require the employee to provide a written statement signed by the employee stating that he is the father of the child, the name of the child’s mother, and the expected or actual date of delivery of the child’s birth.
An employee is entitled to be paid for a period of paternity leave if he has been employed under a continuous employment contract for not less than 40 weeks immediately prior to taking the leave. He must also provide the employer with proof of the child’s birth and his status as the father of the child.
In the case of a child who is born in Hong Kong, this means providing the child’s birth certificate registered under the Births and Deaths Registration Ordinance and bearing the employee’s name as the father of the child. Different documents must be provided if the child is born overseas or if the child is stillborn or dies shortly after birth.
The daily rate of paternity leave pay is in line with that which is currently paid for maternity leave, being 80 per cent of the employee’s average daily wages calculated over the previous 12 months, or if the employee has been employed for less than 12 months, the number of months the employee has been at the company.
In calculating the employee’s average daily wages, employers should take care to exclude any period during which the employee was not paid wages or full wages due to the taking of other leave (including other paternity leave); was not being provided with work on a working day; or was absent due to temporary incapacity for which compensation is payable under the Employees’ Compensation Ordinance.
It is an offence for an employer to fail to grant paternity leave to which an employee is entitled, or to fail to pay paternity leave pay to an employee in accordance with the new statutory provisions. Employers found guilty of these offences will be liable to a fine of HK$50,000.
Employers that already offer paternity leave to their employees in terms more generous than those set out above need not do anything further in order to comply with the new laws when they come in to force on February 27.
However, all employers should review their existing policies that deal with employee leave entitlements and consider whether they need to update them to reflect the new provisions.
Employers who already offer paid paternity leave should still carry out a basic compliance check and consider updating employment contracts for existing employees and new hires going forward.
They should also be alert to the fact that the new laws mean employees need only give as little as five days’ notice of their intended paternity leave date.
They can also run training sessions for their employees on the new paternity leave laws. This will assist employees to understand their new entitlements and may go towards ensuring employees act in accordance with the laws when requesting paternity leave.
Herbert Smith Freehills has 2,800 lawyers and 460 partners in over 20 offices globally. It advises on dispute resolution and employment, among other areas.
Gareth Thomas is head of the Hong Kong commercial litigation team and is responsible for the Greater China employment practice.
Helen Beech is a senior member of the Hong Kong employment practice and has a wide range of experience in employment matters.