Pregnancy and Maternity Leave Arrangements for Foreign Domestic Helper

There was a Facebook post on a online media shared a news about a female employer taking her pregnant foreign domestic helper to a clinic and threatening immediate termination if she did not have an abortion. This incident has generated a lot of debate, with most comments expressing empathy while others suggested terminating the contract. So, what are the rules surrounding the employment of a pregnant foreign domestic helper and what should employers be aware of?

Can a Pregnant Foreign Domestic Helper Be Terminated?

Similar to local employees in Hong Kong, foreign domestic helpers(FDHs) are protected by the Employment Ordinance. Employers cannot terminate their employment due to pregnancy or while they are on maternity leave. Doing so can result in prosecution, with a maximum fine of HK$100,000. Employers can discuss arrangements with their FDHs, such as adjusting their duties during pregnancy or, with mutual consent, possibly ending the contract early so the helper can focus on her pregnancy, but all contract obligations must be fulfilled

.

Maternity Leave and Salary Arrangements for Foreign Domestic Helpers

Starting from December 11, 2020, the Hong Kong government extended maternity leave from 10 to 14 weeks under the Employment Ordinance, and FDHs are entitled to this benefit. However, to qualify for the enhanced maternity leave pay, FDHs must meet the following conditions:

1.          Have been continuously employed by the same employer for at least 40 weeks before the maternity leave is due.

2.          Notify the employer of the pregnancy and make maternity leave arrangements.

3.          Provide a doctor's certificate confirming the expected due date.

If these conditions are met, FDHs can receive 80% of their regular wages during maternity leave, and employers are required to pay the maternity leave salary on the regular payday as per the employment contract.

Reimbursement of Maternity Leave Pay Scheme

In addition to the new 14-week maternity leave arrangement, the government introduced the Reimbursement of Maternity Leave Pay Scheme, which has been in effect since April 1, 2021. Employers can apply for reimbursement if they have paid the full 14 weeks of maternity leave pay to their employees, including FDHs. The reimbursement is capped at HK$80,000 per employee. Employers can apply online through the "Reimbursement Made Easy" website:

http://www.rmlps.gov.hk/. Alternatively, application forms can be downloaded from the website or

obtained from the Labour Department's Labor Relations Division (http://www.labour.gov.hk/tc/tele/lr1.htm) or the Program Service Centre (Address: Room 204, 2/F, South Island Place, 8 Wong Chuk Hang Road, Hong Kong). Applications can be submitted via email (enquiry@rmlps.hk), fax (2178 0328), or in person at the Program Service Centre.

When applying, please provide copies of the following documents:

l   Proof of payment for 14 weeks of maternity leave pay.

l   Proof of the bank account for receiving the reimbursement.

l   Registration/identification documents of the applicant.

l   Proof of the employee's pregnancy.

Work Arrangements for Pregnant Foreign Domestic Helpers

Empathy and understanding are essential. Just as you would advise family or friends to be cautious and avoid heavy work when pregnant, employers should consider a FDH’s health and safety during pregnancy. Upon receiving a doctor's certificate and recommendation, employers are obligated to adjust the helper's duties within 14 days, or they risk violating the law, which could result in a fine of up to HK$100,000. To ensure that the FDH is protected during work, employers may consider purchasing comprehensive insurance that covers hospitalization and surgical expenses, reducing the financial burden if hospitalization becomes necessary.

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The information provided in this article is for general reference only and should not be considered as any form of advice. Our company assumes no responsibility for its use