With the revision of family planning regulations in various provinces and cities, HR has begun to worry about the maternity leave issue of "third phase female employees".
- How to take maternity leave?
- How to pay maternity leave salary? How to get maternity allowance? How should female employees in the third phase be managed?
Today I will take you all to learn.
2022 latest version of maternity leave standard
021 localities gradually modify the "Population Planning and Birth Regulations" to increase the number of days for marriage leave & maternity leave & paternity leave . For details, please see the table below:
maternity leave, prenatal leave and other related holidays?
Let’s first clarify what are the holidays for female employees after they become pregnant?
These holidays can be divided into two categories. One is the holidays that must be enjoyed, and the unit has no right to deprive them. The other is the leave that can be requested if the work permit or the unit agrees.
1. The fake that must be enjoyed
Maternity leave: maternity leave days are 98 days + reward days in various places.
Related legal provisions:
According to Article 7 of the "Hard Protection of Female Employees":
Hairman employees enjoy 98 days of maternity leave, of which 15 days of leave can be taken before delivery; if the childbirth is difficult, 15 days of maternity leave will be added; if the childbirth has multiple births, each additional baby will be given, and 15 days of maternity leave will be added. If a female employee is pregnant for a miscarriage of less than 4 months, she will enjoy 15 days of maternity leave; if a female employee is pregnant for a miscarriage of less than 4 months, she will enjoy 42 days of maternity leave.
Prenatal examination false: During pregnancy, female employees undergo prenatal examinations within the working time agreed by the health care institution (including the initial examination within the twelve weeks of pregnancy), which should be counted as labor time.
Some companies count the prenatal examination time of pregnant female employees during their working hours as sick leave, absenteeism, etc., which infringes on the legitimate rights and interests of female employees.
Related legal provisions:
"Special Regulations on Labor Protection for Female Employees" Article 6 stipulates:
Pregnant female employees undergo prenatal examinations during their working hours, and the required time is included in the labor time
Prenatal leave: is more than seven months pregnant, rests for one hour in the workplace every day, and night shifts are not allowed to be arranged.
The regulations on prenatal leave vary in each region.
Related legal provisions:
Guangdong Province implements the "Special Regulations on Labor Protection for Female Employees" Article 10:
During the pregnancy of a female employee, the employer shall abide by the following regulations:
If a female employee is more than 7 months pregnant, she shall arrange one hour of work break every day. The work break time is deemed to be her normal work and pay the wages of normal working hours , and she shall not be arranged to extend her working hours or engage in night shift work; for female employees who are engaged in position work, rest seats should also be set up in their workplace.
Lactation Fake: Babies can also be used in combination within one year of one year.
Related legal provisions:
"Special Regulations on Labor Protection for Female Employees" Article 9 stipulates:
Householders shall arrange 1 hour of breastfeeding time for Lucking period female employees within the daily working hours; if female employees give birth to multiple twins, one hour of breastfeeding time will be added to each extra baby breastfeeding.
2. If the work permit is approved by the unit, you can ask for leave
Prenatal leave: is more than 7 months pregnant. If the work permit is approved by the unit, you can ask for two and a half months of prenatal leave.
This is limited to some areas, please check the local regulations for details.
Related legal provisions:
"Shanghai Female Employee Labor Protection Measures " Article 12 stipulates: Female employees should be given one hour of rest every day during work, and night shifts shall not be arranged. If you have a work permit, you can take two and a half months of prenatal leave after application and approval by the unit.
"Shanghai Measures for Implementing the Law on the Protection of Women's Rights and Interests of the People's Republic of China" Article 23 stipulates that if a medical and health care institution at level 2 or above has proven that it has a history of habitual miscarriage, serious pregnancy syndrome, pregnancy complications, etc. may affect normal childbirth, the employer shall approve his prenatal leave.
"Shanghai Women's Employee Labor Protection Measures" and "Shanghai Measures for Implementing the Law on the Protection of Women's Rights and Interests of the People's Republic of China" have provisions on prenatal leave wages and benefits. The wages of female employees during prenatal leave enjoyed in accordance with relevant regulations shall not be less than 80% of their original wage income.
Female Failure : doctors will issue certificates and treat them as sick leave.
Related legal provisions:
The former Insurance and Welfare Department of the State Administration of Labor and the Response to the Shanghai Labor Bureau on Female Employees' Response to Female Employees' Restoration and Treatment when Sick Leaves After More than Six Months" (Labor Insurance No. [1982] No. 2):
states that "female employees become pregnant according to family planning . After the doctor issued a certificate, they need to rest in the fetus, their time for rest in the fetus shall be handled in accordance with the provisions of disease benefits implemented by the unit", that is, during the period of pregnancy female employees taking fetus leave, the employer shall pay wages according to the sick leave wage standard. How should the maternity leave salary be calculated? First of all, it is important to note that maternity leave salary and maternity allowance are different. Maternity allowance: National laws and regulations stipulate that the living expenses given to working women during their absence from work due to childbirth. The main body that bears maternity allowances for employees is the social security agency. Maternity leave salary: Wage paid by the company during the maternity leave period. The employer is the employer.
Calculation reminder▼
Maternity allowance ≥maternity leave wages, enterprises no longer have to pay wages repeatedly for employees
Maternity allowance maternity leave wages, adopt the principle of high school, employers need to make up the difference and pay individuals
1. How to pay maternity leave wages?
(1) Prerequisite for receiving maternity leave wages
If a female employee has already enjoyed maternity allowances, medical subsidies and other benefits during maternity leave, if maternity allowance is higher than the average salary of the employee, the company no longer has to pay maternity leave wages to him; if
is lower than the average salary, the company needs to make up for the difference .
. For those who have exceeded the maternity allowance payment period, have not met the maternity allowance collection standard, or have not paid maternity insurance to employees, employees can ask the company to pay maternity leave wages.
(2) Important reminder
Maternity allowances for female employees during maternity leave. For those who have participated in maternity insurance, the maternity insurance fund shall be paid according to the standard of the average monthly salary of employees in the previous year; for those who have not participated in maternity insurance, the maternity insurance shall be paid according to the standard of the salary of female employees before maternity leave.
For example:
A female employee's monthly maternity allowance is 8,000 yuan, while the average monthly salary of the employee in the enterprise is 8,500 yuan, of which the difference of 500 yuan needs to be made up for by the employer; the monthly maternity allowance of female employees is 8,000 yuan, while the average monthly salary of the employer is 7,500 yuan, and the employer cannot deduct 500 yuan that exceeds the average salary.
2. What are the rules for applying for maternity allowances?
(1) How to calculate maternity allowance?
maternity allowance calculation formula: The average monthly salary of the employer where the employee is located/30x times the number of days of maternity leave. (The employee contribution base is calculated based on the average monthly salary of the employer in the previous year); if
is lower than 60% of the monthly average salary of the city's employees in the previous year, it is calculated based on 60% of the monthly average salary of the city's employees in the previous year; if
is higher than 3 times the monthly average salary of the city's employees in the previous year, it is calculated based on 3 times the monthly average salary of the city's employees in the previous year; if
, it is calculated based on the average monthly average salary of the city's employees in the previous year.
(2) What are the requirements for receiving maternity allowances?
Most cities want to enjoy maternity insurance benefits, they need to pay maternity insurance continuously for a certain period of time (usually 12 months), and even reimbursement in some areas is not considered continuous payment. It is also required to apply for maternity allowance within a certain period of time, but it will not be received if it expires.
It can be said that this standard is very strict.
However, in recent years, many places have been lowering the threshold for continuous insurance for maternity insurance and extending the time for maternity allowances. Among them, Guangdong's latest regulations are that the benefits of are no longer subject to the one-year insurance period.
(3) How to get maternity allowance?
The application methods for maternity allowance vary from place to place. In some places, employees handle maternity insurance filing and application procedures by themselves and receive maternity allowances by themselves at the bank.
In some places, units handle maternity insurance filing procedures, and the social security center transfers maternity allowances to the unit account and the unit pays them.
However, with the update of the digital information system, there have been new changes in the application for maternity allowances in various places. How should female employees in the third phase be managed? The so-called "female employee's third phase" refers to: female employee's pregnancy, maternity leave, and breastfeeding period. According to the " Labor Law " and the "Special Provisions on Labor Protection for Female Employees", units shall not reduce their basic wages during pregnancy, delivery, or breastfeeding periods of female employees, or terminate their labor contracts; during pregnancy and breastfeeding periods of female workers, units shall not arrange excessive labor and taboo labor, and shall not extend their labor time; female workers who are more than 7 months pregnant and breastfeeding periods of female workers shall not arrange night shifts. The country has clear legal protection for the "third phase" of female employees. In management practice, enterprises often encounter situations where female employees often ask for leave, take sick leave, passively slacking off, or even fail to attend during pregnancy. Enterprises often fall into the dilemma of "wanting to manage but not daring to manage". What should enterprises do? 1. What should employees do if they conceal their pregnancy and join the company? Method 1: Through resume and interview, she learned about when she got married, whether she was at the age to prepare for pregnancy, whether she had plans to get pregnant, etc. If you are a particularly outstanding employee, the company might as well hire him out of order, because the value she creates for the company far exceeds the cost she spends for her. Method 2: You can use entry physical examination to determine whether female employees are pregnant or have plans to get pregnant. For example: If she is pregnant, she will not do some physical examination items. Based on this, HR can judge and communicate whether the candidate has plans to become pregnant. In addition, the prenatal examination should be one of the links of the employment assessment, and it is not advisable to arrange a physical examination only after deciding to hire. For female employees who become pregnant shortly after employment, it is recommended that the company complete the probation period and spend enough time to deal with this matter. We also need to consider: Is this employee the talent we need? Or can she continue to create value for the company even if she is pregnant? If we can continue to create value for the company, then we can make her become a regular as scheduled. If it is some not so important positions, then she will not be of much use to the company when she is pregnant. In this way, we can terminate the labor relationship in accordance with Article 39, paragraph 1 of the " Labor Contract Law ": "Proof that it does not meet the employment conditions during the probation period" to terminate the labor relationship. Here, the author needs to clarify: the clause in Article 39, paragraph 1 of the Labor Contract Law "dismissal if not meets the conditions for employment" is not inconsistent with the relevant clause in which female employees in the third phase shall not be dismissed illegally. All provisions under Article 39 of the Labor Contract Law that can be dismissed and no economic compensation shall be applied to general employees, regardless of whether the employee is in a special state such as third period, work-related injuries, sick leave, etc. (except as otherwise provided by law). Therefore, it is recommended that when signing an labor contract with employees, another job responsibility statement, or a confirmation letter of employment conditions should be signed. Let her understand her job responsibilities, job characteristics and employment conditions. Only by doing enough work in the early stage can she be more at ease when using this clause in the later stage. gives an example. The author once had an consulting unit that produces and sells cosmetics as its main business. When hiring a female cosmetics promoter, the unit asked the female promoter to sign a "Confirmation of Recruitment Conditions", which states the following matters: ① This position is a position that directly contacts chemicals with skin. Although these chemicals are harmless based on existing scientific and technological testing methods, based on more advanced scientific methods in the future, the possibility of hazards in these chemicals cannot be ruled out. Therefore, this position is not suitable for pregnant female employees. ② Based on the characteristics of this position promoting for the public, that is, promotions need to be carried out on public holidays and holidays, and the possibility of night shifts cannot be avoided. Also not suitable for pregnant female employees. ③ Based on the work characteristics of this position, trial services are required to provide customers with a standing posture, so it is not suitable for pregnant female employees. Therefore, if a female employee becomes pregnant during the probation period, it is not meeting the conditions for employment; if she becomes pregnant outside the probation period, it is incompetent in the work. The company will handle it according to law (dismissal or adjust the job position). Summary: 1 Enterprises can combine their own industry characteristics and job needs to require female employees to sign a job responsibility statement, or a confirmation letter of employment conditions.
is used to clarify what the conditions for employment are, and combined with their work performance during the probation period, it is easy to make feasible plans to dismiss those female employees who maliciously defrauded the third-demand treatment on the grounds of "not meeting the conditions for employment".
What should I do if female employees in the second and third phases are not disciplined and lazy?
What should I do if I encounter an employee who is undisciplined and lazy in the name of the third phase? Some female employees found out that they were pregnant and started to take leave at will not follow the procedures, and did not contact the company, nor did they say whether they were still working in the company. How should they deal with this situation?
Method 1:
can be dealt with in accordance with Article 39, paragraph 2 of the Labor Law. But we need to verify her condition. If she is really feeling uncomfortable, we can treat it differently.
If this employee has nothing to do, he is just staying at home and providing a fake hospital certificate, we can deal with it according to the labor law.
Method 2:
is used to deal with absenteeism. Some employees will think, "I am pregnant now, and during the third phase, the company has no choice but to do anything to me." They will ask for leave in the early stage. After asking for a few times, they feel that I don't have to go to work or go through any leave procedures in the later stage.
But this is not the case. The company will clearly state in its own rules and regulations: if you have not asked for leave for more than 3 days, you will be treated as absenteeism. As long as the company has a legal system for public announcement and has signed and confirmed by the employees themselves, we can use this clause reasonably.
If an employee fails to complete the leave procedures, he will seriously violate the company's rules and regulations, and the company can terminate the labor relationship with the employee.
Reminder:
Some employees have indeed contributed to the company. They must not consider eliminating the female employees in the third phase. This is also a very important aspect of corporate culture construction. Is there any company that knows that employees are pregnant or hired? Actually, there are.
For example, like a sales salesperson, as long as she negotiates the business, she doesn’t have to take a seat. HR practitioners must fully understand the company's business, treat each position differently, and clarify which positions are not suitable for hiring female employees in the third phase and which positions can hiring female employees in the third phase without any worries, so as to guide the company's leaders to create a harmonious and harmonious corporate culture atmosphere.
