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Civil Code and Management of Female Employees

2020-09-22

Author: Yang Zhe杨喆
Translators: Normand Gauthier, Su Yiwei
 
The fifth part of the Civil Code, Marriage and Family, clarifies a series of relevant regulations for the civil legal relationship arising from marriage and family. The main content comes from the original Marriage Law of the People’s Republic of China and related judicial interpretations. It is worth noting that while Article 1041 of the Civil Code retained the first two paragraphs of Article 2 of the original Marriage Law, the third paragraph, on practicing family planning, was removed. What can we learn from this it and what impacts it may have on enterprise labor, personnel and employment, especially the management of female employees? This article will provide readers with an outlook and some analysis to that question.
 
1. Information given by the Civil Code
For a long time, the "family planning policy" has been one of the PRC's basic national policies and has affected all aspects of social life. This policy is highly relevant with the daily labor management of enterprises, especially the management of female employees.
Many issues are closely related to family planning, such as the conditions and standards of employees’ marriage leave benefits (not limited to female employees), maternity leave duration and benefits during maternity leave, maternity surgical leave and benefits, etc. In recent years, the family planning policy has been adjusted from One-child Policy to Restricted Two-child Policy and then to the Comprehensive Two-child Policy[1]. During this period, employers have faced considerable challenges in the daily management of female employees.
In the fifth part of the Civil Code, Marriage and Family, Article 1041 of the Civil Code retained the first two paragraphs of Article 2 of the original Marriage Law, yet the third paragraph, on practicing family planning, was not retained. In the major ministries reform of the State Council in 2018, the National Health and Family Planning Commission (the NHFPC) was changed to the National Health Commission (the NHC). This reflects the transformation of the goal of the relevant departments from controlling birthrate to encouraging it.
In light of the changes in the family planning policy in recent years and the Civil Code not retaining family planning, it is worthy for employers to stay attentive to further changes in the management of female employees.
 
2. The influence of the Civil Code on the management of female employees
2.1 Changes in the birth policy
After the founding of the People’s Republic of China in 1949, until the 1970s, the Chinese government has been encouraging reproduction. The explosive population growth has laid the foundation for the demographic dividend after the reform and opening up, but it also brought great pressure to society. Facing the dual pressure of rapid population growth and following severe economic setbacks, the Chinese government has increasingly realized the socio-economic impact of excessive population growth on the livelihood.
In 1978, it was written into the Constitution that “the state promotes family planning”, and the “strict one-child” family planning policy began with a long-term implementation. The CPC Central Committee’s expectation was that the family planning policy would only be implemented for 30 years, some demographic scholars in the mid-1990s proposed the year 2000 as the best time to adjust the birth policy. However, for a variety of reasons, the implementation period of the family planning policy has been greatly extended.
In 2013, the adjustment of the family planning policy finally took substantial steps. The Third Plenary Session of the 18th Central Committee of the Communist Party of China decided to launch the Restricted Two-child Policy in 2014. Due to the poor results, in 2016 it was extended to the Comprehensive Two-child Policy. The results were once again lower than expected. It often takes many years to develop a habit and may take even longer to change an established habit. Now that the wheel of the birth policy has been turned, there seems to be an intentional gradual acceleration.
 
2.2 New policy to promote women's employment
On February 18, 2019, the Ministry of Human Resources and Social Security and other nine departments issued the “Notice on Further Regulating Recruitment Activities and Promoting Equal Employment for Women” (hereinafter referred to as the Notice), noting that women continue to face some difficulties in employment, in particular gender discrimination, which adversely affects women's employment.
The Notice further detailed regulations on the specific manifestations of gender discrimination in employment as stated in Article 2:
…In the process of working out recruitment plans, releasing recruitment information and recruiting personnel, all types of employers and human resources service agencies shall not restrict certain gender (except for the job scopes prohibited to be assigned to female employees) or give priority to certain gender; they shall not restrict women's employment or refuse to employ women candidates on the grounds of gender, nor shall they ask women about their marriage and childbirth. They shall not use pregnancy test as one item for physical examination of new employees, nor shall they take restrictions on childbirth as a condition of employment; and they shall not increase the recruitment standards for women candidates in a differentiated manner…
The promulgation of the above policies can clearly promote women’s equal employment, especially the prohibition to inquire the women’s marital and childbearing situation, pregnancy tests as entry medical examination items, and restrictions on childbirth as a condition for employment. This highlights a protection of childbirth for female employees. To a certain extent, it can also be understood that the original intention also includes remove the concerns of female workers for childbearing, thereby assisting the shift in fertility policies.
 
2.3 Legal responsibilities of employers
For employers, a series of labor laws and regulations such as the Labor Contract Law of the People’s Republic of China, the Law on the Protection of Women’s Rights and Interests of the People’s Republic of China among other labor laws and regulations, have defined a series of obligations and responsibilities for the protection of female workers, especially in the area of labor protection for women workers in the "Three Periods", including the following categories of protections directly related to the birth of female workers:
 
a. Protect the rights of female employees to maternity examination
For pregnant female employees to undergo prenatal check-ups on working days, the time required must be included in the working hours, and the employer cannot regard it as sick leave or personal leave, and cannot unilaterally arrange for female employees to use paid annual leave.
 
b. Guarantee the work intensity of pregnant employees
If a pregnant employee cannot adapt to the labor intensity of her original position, the employer shall reduce the amount of labor or arrange other labor that the employee can perform according to the relevant certificate of the medical institution provided by the employee.
 
c. Protection against overtime and night shifts
For employees pregnant for more than 7 months or breastfeeding for infants under the age of one, employers shall not arrange for the employee to work overtime nor night shift.
 
d. Breaks and breastfeeding time
For employees pregnant for more than 7 months, the employer should arrange rest time during working hours. There is no uniform national regulation for the specific length. The standard in Shanghai and other places is one hour daily. In addition, for employees who are breastfeeding infants under the age of one, the employer shall arrange one hour of breastfeeding time during the daily working hours; for multiple births each additional baby will increase breastfeeding time by one hour.
 
e. Guarantee the maternity leave treatment for female employees
The treatment of female employees during maternity leave includes two parts: maternity leave and income during maternity leave. Regarding maternity leave, female employees are entitled to
  • 98 days of maternity leave during childbirth, including 15 days of prenatal leave;
  • for dystocia, an additional 15 days of maternity leave;
  • for multiple births, an additional 15 days of maternity leave for every additional baby.
  • Female employees who have a miscarriage within 4 months of pregnancy are entitled to 15 days of maternity leave;
  • those who have a miscarriage within 4 months of pregnancy are entitled to 42 days of maternity leave.
Regarding the income during maternity leave, if the employer pays maternity insurance for female employees in accordance with the law, the maternity insurance pays the maternity allowance for female employees during the maternity leave (in special circumstances, the employer is also required to make up for the difference, which will not be repeated here). If the employing unit does not pay maternity insurance for female employees in accordance with the law, the employing unit shall pay the maternity insurance according to the standard of the maternity leave wages of the female employee.
 
f. Dismissal protection for female employees
Employers are not allowed to reduce the wages of female employees due to pregnancy, childbirth, breastfeeding, and female employees in their nursing period. Furthermore, employers cannot terminate the employment relationship based on Articles 40 and 41 of Labor Contract Law (termination without fault and economic layoffs). However, the law does not restrict employers from to end the employment relationship on the group of Articles 36 and 39 (dissolution through negotiation, termination for fault) of the Labor Contract Law. Despite being possible, it is important to note that in practice, the burden of proof and obligation for employers are correspondingly higher.
 
g. Guarantee special places for female employees
For employers with a large number of female employees, the law also requires that facilities such as female employee clinics, pregnant women's break rooms, and nursing rooms are established in accordance with the needs of female employees to properly resolve female employees’ difficulties in physical health and breastfeeding.
In summary, employers have a series of legal responsibilities for the labor protection of female employees in their nursing. With the changes in the national childbirth policy, employers also need to improve their internal policies and be better prepared to manage female employees in compliance with the law.
 
3. Suggestions management of female employees
As mentioned in the above section, employers have the obligation to protect female workers in their nursing period, and with the changes in the national birth policy, and the subsequent foreseeable introduction and implementation of relevant policies to further strengthen women’s employment, as employers, the author suggests to take precautions and do the following.
 
a. Revise relevant rules and regulations
The employer first needs revise the current rules and regulations to confirm whether the provisions on the protection of female employees meet the minimum standards of the law. If there are conflicts, they should be modified to ensure that the employer’s various systems and texts are legal and compliant.
 
b. Review and improve daily management requirements
Employers also need to review and improve the daily attendance and leaves systems, especially for the special leaves related to female employees. There should be a clear application procedures, materials and related procedures for benefits. Relevant records should be kept for future reference and potential inspections. These steps are necessary to protect the legitimate rights and interests of female employees, but also to regulate the daily management of female employees enjoying relevant leaves.
 
c. Optimize and enhance personnel management efficiency
Under the new trend, employers also need to keep pace with the times, make comprehensive considerations through positions, functions, and manpower, and establish plans for the situation where female employees are unable to perform job functions during the Three Periods. Make reasonable arrangement of manpower through labor dispatch, and internal potential, job adjustment, etc. Of course, this is bound to bringing greater challenges to the human resources department of the enterprise.
 

[1] The Chinese terms are独生子女, 单独二孩 and 全面二孩. which have been translated to One-child-policy, Restricted Two Child Policy and Comprehensive Two Child Policy respectively. The policies are as following:
One-child policy: one child per couple
Restricted Two Child Policy: possible to have two children under certain conditions, the conditions were enlarged over time. By example: a couple consisting of two unique children may have two children.
Comprehensive Two Child Policy: every couple can have up to two children

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