The Employment (Amendment) (No. 3) Ordinance 2018, which was gazetted on 1st November 2018 and came into operation on 18 January 2019, has amended the relevant sections of the Employment Ordinance (Cap. 57) (“Employment Ordinance”) regarding paternity leave by increasing the paternity leave from 3 days to 5 days (“Amendment”).
Fathers who have a child born on or after 18 January 2019 will be entitled to 5 days of paternity leave to spend with their loved ones. Fathers who had a child born on or after 27 February 2015 but before 18 January 2019 would remain entitled to the original 3-day paternity leave only.
The Employment (Amendment) (No. 3) Ordinance 2018 can be viewed here.
Paternity Leave at a glance (post-amendment)
A male employee is entitled to paternity leave in respect of the birth of a child if (1) he is the father of the child; (2) he has been employed under a continuous contract immediately before taking such leave; and (3) he has notified his employer as required under the Employment Ordinance .
An employee must notify the employer of (a) his intention to take paternity leave at least 3 months before the expected date of the delivery of the child and (b) the intended date of his leave before taking such leave. If the employee does not give the notice referred to in (a) then he must notify the employer each intended date of his leave at least 5 days before that intended date.
The employer may require the employee to provide a written statement stating that (i) he is the father of the child; (ii) the name of the mother; and (iii) the expected / actual date of delivery of the child. The Labour Department has issued a sample of such statement (accessible at https://www.labour.gov.hk/eng/public/wcp/ConciseGuide/07.pdf, page 2).
The employee is entitled to take his paternity leave during the period of 4 weeks before the expected date of delivery of the child and 10 weeks after the actual date of delivery of the child. The employee can take such leave consecutively or separately.
Paternity leave is in addition to rest days, holidays and annual leave as the employee is entitled under the Employment Ordinance. Employees who are entitled to paternity leave are also entitled to paternity leave pay subject to the relevant requirements under the Employment Ordinance.
What about the mothers?
At the Chief Executive's 2018 Policy Address (“2018 Policy Address”), it was proposed that maternity leave granted under the Employment Ordinance be extended from the current 10 weeks to 14 weeks. No legislations have been passed to amend the relevant sections of the Employment Ordinance regarding maternity leave as of yet. However, in the 2018 Policy Address, the Hong Kong Government stated that it has decided to extend the maternity leave to all female employees of the Hong Kong Government, in order to set an example of a good employer.
Practical implications
Employers are encouraged to review and amend/update their existing employment agreements with their employees, their employee handbooks and other relevant notices and circulars where the employer’s internal rules pertaining to paternity leave days are set out. In particular, employers who provide paternity leave entitlements that are in excess of the statutory minimum should take the Amendment into account. Consent of the employee might be required depending on the relevant terms of the employment agreement or employee handbook (or notices or circulars) in question.
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