For example, if the child is born on December 1, 2021, it is an anniversary until November 30, 2022, during which both parties can enjoy 5 days of parental leave each.

On November 25 last year, the 37th meeting of the Standing Committee of the 15th People's Congress of Shanghai reviewed and passed "Decision on Amending the Shanghai Population and Family Planning Regulations" (hereinafter referred to as the "Regulations") , which will come into effect on the date of its promulgation. According to the newly revised Regulations, couples who have children in accordance with the provisions of laws and regulations can enjoy 5 days of parental leave each year before their children reach the age of three. The salary during parental leave is paid according to the salary you deserve to attend normally.

According to the answers from the authoritative department, in actual implementation, parental leave is calculated based on the number of children born. In principle, annual parental leave should be used in that year, and can be used continuously or in dispersed.

Shanghai parental leave has begun to be implemented. So, what issues should be paid attention to in practice?

Parental leave related policies

The Regulations stipulate: "Couples who have children in accordance with the provisions of laws and regulations can enjoy five days of parental leave each year before their children reach the age of three."

First of all, the prerequisite for enjoying parental leave is legal childbirth. The so-called "a couple can have three children" is calculated based on the number of children, rather than the number of births.

So can only enjoy birth leave if you have a third child? Can employees with foreign household registration enjoy maternity leave in Shanghai? Can you enjoy maternity leave if you are pregnant before marriage?

In fact, as long as a couple who have legal childbirth, they can enjoy parental leave regardless of whether they have the first or third child. As for holiday enjoyment, there are no restrictions on paying social security or household registration in Shanghai. If you are not married, you do not meet the conditions for enjoying parental leave. The child who receives an marriage certificate before birth is legal for childbirth.

Secondly, "before their children reaching three years of age, both parties can enjoy five days of parental leave each year." The "year" here does not refer to the natural year, but the "anniversary".

For example, if the child is born on December 1, 2021, it is an anniversary until November 30, 2022, during which both parties can enjoy 5 days of parental leave each. And so on.

Third, annual parental leave should be used in principle in that year, and can be used continuously or in dispersed. The purpose of setting up parental leave is mainly to provide convenience for workers to take care of infants and young children. " Guiding Opinions of the General Office of the State Council on Promoting the Development of Care Services for Infants and Young Children under 3" points out that "local governments are encouraged to explore the implementation of parental leave and maternity leave that is connected with infant care services."

Whether it is continuous or decentralized use, it is to facilitate workers to take care of infants and young children as much as possible, and it is also convenient for employers to arrange their work.

Fourth, parental leave is calculated based on the number of children born. For example, if two children are under the age of three, they can take 10 days of parental leave.

Also note: maternity leave will be implemented from the date of implementation of the newly revised Regulations. So, on November 25 of the year of implementation, if the children are under three years old, can their parents also enjoy parental leave? Parental leave can be enjoyed and calculated based on the actual age of the child. For example, if the child's actual age is over 1 year old or under 2 years old, both parents can enjoy 5 days of parental leave for 2 years. And so on.

Can parental leave be "converted" in the year of joining the job?

1. For the number of days a worker enjoys parental leave in the year of joining or leaving, can the employer "convert" it like paid annual leave? There is no basis for the statement

. There are clear provisions for "conversion" of paid annual leave days, that is, if the employee has newly joined the employer and the employee has worked continuously for more than 12 months, the number of annual leave days for the year shall be determined based on the remaining calendar days in the unit. The part that is less than 1 full day after conversion will not enjoy annual leave. Parental leave only stipulates that "before the child reaches three years of age, both parties can enjoy 5 days of parental leave each year", and there is no "conversion" requirement.

calculates the number of days of the two holidays.The former is based on the working years of the employee, while the latter is based on the number of children born by the employee. Of course, the calculation periods of the two are also different. The “year” for calculating paid annual leave refers to the calendar year, while the “year” for calculating parental leave refers to the child’s anniversary.

In short, there is no problem of "conversion" in the number of parental leave days like paid annual leave. Workers enjoy 5 days of parenting leave in accordance with the law in the year when they join or leave.

For example, the birth date of a certain employee’s child was January 1, 2021, and on July 1, 2022, she jumped from Unit A to Unit B. If she did not take parental leave in Unit A in the first half of 2022, then she could enjoy 5 days of parental leave in Unit B in the second half of 2022. If she had taken 2 days of parental leave at Unit A in the first half of 2022, she could enjoy 3 days of parental leave at Unit B in the second half of 2022.

Of course, based on the evidence filled in by the employee and other evidence, if the employer has taken the parenting leave for the year before joining the job, the parenting leave may no longer be arranged in the year.

In addition, if the employer clearly states in the rules and regulations or labor contract : Employees should take parental leave for the year before joining the job, it is not prohibited by law.

According to Article 50, paragraph 1 of the "Interpretation of the Supreme People's Court on the Application of Laws in the Trial of Labor Disputes Cases (I)" which came into effect on January 1 last year, "If an employer formulates rules and regulations through democratic procedures according to Article 4 of the Labor Contract Law of , which does not violate national laws, administrative regulations and policy provisions, and has been made public to the workers, it can be used as the basis for determining the rights and obligations of both parties."

However, the relevant provisions or agreements should be reasonable. If there is evidence that workers are indeed unable to enjoy parental leave for the year before joining the job, even if the employer stipulates that parental leave must be taken before joining the job, it is not reasonable, the employer should still arrange parental leave.

2. Can employers deduct wages during parental leave?

cannot. The Regulations stipulate: "The wages during parental leave shall be paid according to the wages that I deserve to be at normal attendance."

According to the provisions of " Shanghai Enterprise Wage Payment Measures " (Shanghai Human Resources and Social Security Comprehensive Fa [2016] No. 29), the calculated base of holiday wages is the normal monthly salary corresponding to the worker's position, and does not include year-end bonuses, work and meal subsidies, housing subsidies, middle and night shift subsidies, summer high temperature subsidies, overtime wages and other wages.

How should enterprises implement parental leave?

Many people are worried that parental leave will not be implemented in real life. Indeed, employers do not arrange parental leave as required, unlike that arranges overtime work to pay overtime wages during statutory holidays, and also not pay compensation for paid annual leave. At present, the city does not stipulate this penalty. However, this does not mean that workers can apply for leave, and employers can refuse them all. This also requires specific analysis of the specific situation.

First of all, under normal circumstances, the specific plan for workers to enjoy parental leave should be implemented in accordance with the rules and regulations formulated by the employer in accordance with the law, collective contracts or labor contracts signed by both parties. In principle, the vacation time should be determined by negotiation between the two parties, and it is not unilaterally possible for the worker to decide at will, otherwise the normal production and operation order of the employer will be difficult to maintain. The so-called "parental leave should be used in principle in the current year", that is, in special circumstances, it can also be used in the next year.

Secondly, the worker does have urgent reasons for infant care. If the child is sick and needs care urgently, the employer shall approve his or her leave application. In fact, before the parental leave is issued, the worker should apply for leave on this ground, and the employer should also approve it. However, if you take leave, the employer can deduct wages, and the wages during parental leave will be paid according to the salary you deserve to attend normally.