What are the legal protections for female workers during pregnancy, childbirth and lactation?

According to Article 42 (4) of the Labor Contract Law, if a female employee is pregnant, giving birth or breastfeeding, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law.

Labor Contract Law

Article 40 Under any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary:

1) The worker is sick or injured not due to work, and is unable to perform his original job or work arranged by the employer after the prescribed medical treatment period has expired;

2) The worker is incompetent for the job, and is still incompetent for the job after training or job adjustment;

3) There is a major change in the objective circumstances on which the labor contract was concluded, making it impossible to perform the labor contract, and the employer and the employee fail to reach an agreement on changing the content of the labor contract after consultation.

Article 41 In any of the following circumstances, where it is necessary to lay off 20 or more employees or less than 20 but accounting for more than 10 percent of the total number of employees of the enterprise, the employer shall explain the situation to the trade union or all employees 30 days in advance, and after listening to the opinions of the trade union or the employees, it may reduce the number of personnel after reporting to the labor administrative department:

1) Reorganization is carried out in accordance with the provisions of the Enterprise Bankruptcy Law;

2) Serious difficulties occur in production and operation;

3) The enterprise still needs to lay off personnel after changing the labor contract, after changing the labor contract;

4) Other situations where the labor contract cannot be performed due to major changes in the objective economic conditions on which the labor contract is based.

When reducing personnel, priority shall be given to retaining the following personnel:

1) Entering into a fixed-term labor contract with the unit for a longer period of time;

2) Entering into an indefinite labor contract with the unit;

3) There are no other employed persons in the family, and there are elderly or minors who need to be supported.

Where an employer lays off personnel in accordance with the provisions of the first paragraph of this Article and rehires personnel within six months, it shall notify the personnel who have been laid off and give priority to the personnel who have been laid off under the same conditions.

Article 42 Under any of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law:

1) Workers engaged in operations that expose occupational disease hazards have not undergone a pre-departure occupational health examination, or are suspected of being an occupational disease patient during the period of diagnosis or medical observation;

2. Suffering from an occupational disease or being injured at work in the unit and being confirmed to have lost or partially lost the ability to work;

3) Illness or non-work-related injury, within the prescribed medical treatment period;

4) Female employees are pregnant, giving birth, or breastfeeding;

5) Those who have worked in the unit for 15 consecutive years and are less than five years away from the statutory retirement age;

6) Other circumstances provided for by laws and administrative regulations.

Due to the particularity of the social status, social role and physiological characteristics of female employees, the law has made special provisions on the labor protection of female employees. The Law on the Protection of Rights and Interests of Women, the Labor Contract Law, the Labor Law and other laws provide mandatory protection for female employees who cannot be terminated from their labor contracts in the third period. The Regulations for the Implementation of the Labor Contract Law also clearly stipulate that upon the expiration of the labor contract, the labor contract shall be renewed if the female employee is pregnant, giving birth or breastfeeding.

However, there is no law or regulation that provides for the maximum protection of female employees in the third period after the employer illegally terminates the labor contract by the employer, except for the continued performance of the labor contract. If a female employee is unwilling to continue to perform the labor contract after the employer illegally terminates the labor contract in the third period, according to Article 87 of the Labor Contract Law, she can only pay compensation to the female employee in accordance with twice the economic compensation standard stipulated in Article 47 of the Labor Contract Law. If this compensation standard is followed, it is really unfair for the disadvantaged group, the "third-term" female employees, to independently bear the responsibility for childbirth after the termination of the labor contract.

If a female employee is unwilling to continue to perform the labor contract after the employer illegally terminates the labor contract in the third period, it is also unfair to the employer that the employer shall bear all the wages, insurance, and welfare benefits after the termination of the labor contract; It would be even more unfair if a female employee in the "third period" terminates the labor contract and suffers a miscarriage or accidental death of a baby due to objective reasons or human factors, and the female employee still normally enjoys the one-time payment of wages, insurance, and welfare benefits during the "third period" after the termination of the labor contract. Therefore, it will be overwhelming to put all the obligations after the termination of the labor contract on the employer, and make the employer bear too much social responsibility. When employers can't afford it, they will think of resisting the realization of employees' rights.

In particular, the purpose of some enterprises is to make money and pursue the maximization of profits, and if there is no profit to be made, they will either go bankrupt or do everything possible to break the law, and it is the workers who will suffer in the end. ‍‍

The rights and interests of women during pregnancy, childbirth and lactation are:

1.Pregnant female employees must not be dismissed at will

Many employers may feel that the inability of a female employee to perform normal work during pregnancy will affect the company's profitability, and the company is required to pay her salary, which is a loss-making transaction.

Article 4 of the Provisions on the Labor Protection of Female Employees: The basic salary of a female employee shall not be reduced or the labor contract shall be terminated during the period of pregnancy, childbirth or breastfeeding.

2.Female employees who are pregnant must not be arbitrarily given a salary reduction

The law prohibits female employees from becoming pregnant at will, and some companies may transfer or reduce salaries to female employees in disguise to reduce costs or dissuade employees from retiring, <>

According to Article 27 of the Law of the People's Republic of China on the Protection of Women's Rights and Interests, no unit may reduce the wages of female employees, dismiss female employees, or unilaterally terminate labor (employment) contracts or service agreements due to marriage, pregnancy, maternity leave, breastfeeding, or other circumstances. However, there is an exception for female employees who request the termination of labor (employment) contracts or service agreements.

Legal Analysis: If a female employee is pregnant, giving birth, or breastfeeding, the employer shall not terminate the labor contract. If the employer unilaterally proposes to terminate the labor contract, or if the employer dismisses the "third-term" female employee, the employer's termination of the labor contract will be recognized as invalid in accordance with the law.

Legal basis: Article 29 of the Labor Law of the People's Republic of China The employer shall not terminate the labor contract in accordance with the provisions of Articles 26 and 27 of this Law if the employee falls under any of the following circumstances:

1. Suffering from an occupational disease or being injured at work and being confirmed to have lost or partially lost the ability to work;

2) Sick or injured within the prescribed period of medical treatment;

3) Female employees are pregnant, giving birth, or breastfeeding;

4) Other circumstances provided for by laws and administrative regulations.

The law provides the following protections for lactating female employees: employers may not extend their working hours or arrange night shifts; Breastfeeding breaks should be arranged during working hours each day; And according to the needs of employees, the difficulties of female employees in physiological pure liquid, bright burial, hygiene, breastfeeding, etc. should be properly solved.

Legal basis] Article 9 of the Special Provisions on the Labor Protection of Female Employees.

For female employees who are nursing infants under the age of one, employers are not allowed to extend working hours or arrange night shifts.

The employer shall make a notice during the working hours of each day and arrange a breastfeeding time for the breastfeeding female employee for one hour; If a female employee gives birth to multiple babies, the breastfeeding time shall be increased by 1 hour per day for each additional baby breastfed.

Article 10. Employers with a relatively large number of female employees shall, on the basis of the needs of female employees, establish facilities such as sanitary rooms, rest rooms for pregnant women, and nursing rooms, to properly resolve female employees' difficulties in physical hygiene and breastfeeding.