On 28 February 2014, the Employment (Amendment) Bill (“Bill“), which proposes to introduce paternity leave as Part IIIA to the Employment Ordinance (Cap. 57 of the Laws of Hong Kong), was gazetted. The first read of the Bill was held on 26 March 2014 in the hope that it can be passed into law this year. This should be a modest leap forward to bring Hong Kong in line with international practice.
The Bill proposes to give fathers no more than 3 days of paternity leave which they can choose to take consecutively, or separately. The period during which a father can take paternity leave is 4 weeks before the expected date of the child’s birth and 10 weeks from and inclusive of the actual date of the child’s birth. When compared with the standard maternity leave period being a block leave of 4 weeks before and 6 weeks after confinement, new fathers enjoy greater flexibility to use their paternity leave days.
An employee is entitled to paternity leave if he has been employed by the same employer under a continuous contract (i.e. employed for a minimum of 4 consecutive weeks for at least 18 hours a week) immediately before taking the leave. He must also notify his employer of his intention to take the leave 3 months before the expected date of the child’s birth and at least 2 days before each intended leave, or 5 days before each intended leave in the absence of the 3-month notice to his employer. Moreover, upon the employer’s request, the employee is required to provide a signed written statement declaring that he is the child’s father and giving information as to the name of the child’s mother and the expected date of the child’s birth.
Further, to be entitled to paternity leave pay, which is calculated at forth-fifths of the employee’s average daily wages for each leave day, the employee should have been employed by the same employer under a continuous contract for a period of not less than 40 weeks immediately before the day of the paternity leave. The employee must also provide his employer with the birth certificate of the child upon which the employee’s name is entered as the child’s father. If, in the unfortunate event that the child is born dead or dies after birth and an employee is unable to provide his employer with the relevant birth certificate, he is still entitled to paid paternity leave by providing the employer with a medical certificate in the manner as specified in the Bill.
In contrast with provisions concerning maternity leave, there is no express statutory protection against termination of employment during the period when a male employee is on paternity leave. It is also noteworthy that multiple births in one pregnancy are taken as one confinement and a father is only entitled to a maximum of 3 days of paternity leave, and that entitlement to paternity leave does not apply to miscarriage.
This article is brought to you by the employment practice team of Howse Williams Bowers. To know more about paternity leave and other major employment issues relevant to HR professionals, please join us in a seminar entitled “Everything you need to know in preparing an employment contract” organized by jobsDB on 11 June 2014. Details of this seminar will be announced by jobsDB shortly.