The impact of the “Population and Family Planning Law of the People’s Republic of China” — the "Parental Leave" has been announced in various provinces and cities

The “Population and Family Planning Law of the People’s Republic of China (Amended in 2021)” has come into force on 20 Aug., 2021, in which Article 25 prescribes that the State supports provinces and cities which conditions permit to establish “Parental leave”.

Recently, some cities and provinces have successively introduced relevant regulations on “Parental leave” by revising local population and family planning regulations, or formulating supporting opinions. On 25 Nov., 2021, the “Regulations of Shanghai Municipality on Population and Family Planning (Revised)” has been announced, in which the maternity leave for female employees has been extended from 30 days to 60 days, and “Parental leave” is added, that is, both spouses with children under the age of 3 are given 5 days of the “Parental leave” every year. It is reported that around 15 provinces including Jiangxi, Sichuan, Jiangsu, Guizhou, Jilin, Shanxi, Heilongjiang, Liaoning, Hunan, Hubei, Shaanxi, Anhui, Hainan, Ningxia and etc., have announced amendments or supporting opinions. More than a dozen provinces have successively issued drafts for soliciting opinions, which are expected to be released in the near future.

In view those local regulations which have been announced, “Parental leave” refers to a certain number of days of leave granted by the employer to both spouses with their children under the age of 3; and the specific number of days varies from place to place, ranging from 5 to 15 days.

Regarding “Parental leave”, the following issues are needed to be clarified.

1. Is “Parental leave” mandatory?

There are differences from place to place. For example, according to Article 24 of the “Regulations of Sichuan Province on Population and Family Planning”, “Parental leave” is mandatory. Article 26, paragraph 2, of the “Regulations of Jiangsu Province on the Protection of Women’s Rights and Interests” (implemented in 2018) stipulates that during the maternity leave of the woman, the employer of the husband is encouraged to arrange a joint “Parental leave” of no less than 5 days, where “Parental leave” is encouraged to be implemented. However, the amendment of the “Regulations of Jiangsu Province on Population and Family Planning” that was implemented in Sep. this year, stipulates that the provincial government could announce “Parental leave” separately. In view of this, whether “Parental leave” is mandatory is still not clear in Jiangsu province.

2. Can a company require employees to enjoy “Parental leave” after they have met a certain length of employment?

From the perspective of national legislative purposes, and the nature of “Parental leave” and the paternity leave, it is not appropriate for a company to set such requirement, such as requiring employees to enjoy “Parental leave” after 1 year of employment. If local regulations set “Parental leave” as a mandatory one, such requirement would be definitely deemed as invalid.

3. Does “Parental leave” include holidays?

In consideration of the purpose of “Parental leave” is to provide time to parent for accompanying children, and all released local regulations do not require parent to ask for such leave for one-time, “Parental leave” shall only be working days, not including holidays. This opinion could be confirmed by “Guiding Opinions on “Parental Leave” in the Implementation of the Sichuan Province Population and Family Planning Regulations” issued by the Sichuan Provincial Health Commission.