Special Provisions for the Work Protection of Female Employees

(Promulgated by the State Council on, and effective as of, April 28 2012.)

Order of the State Council No.619

Article 1: These Provisions have been formulated in order to minimise and resolve the special difficulties experienced by female employees in work due to their physiological characteristics and to protect the health of female employees.

Article 2: These Provisions shall govern employers such as state authorities, enterprises, public institutions, associations, family proprietary economic organisations and other social organisations, and their female employees in the People's Republic of China.

Article 3: Employers shall enhance the work protection of female employees, take measures to improve the work safety and hygiene conditions for female employees and give female employees training in work safety and hygiene knowledge.

Article 4: Employers shall comply with provisions on the scope of work in which the engagement of female employees should be avoided. Employers shall inform female employees in writing of the jobs that fall within the scope of work in which the engagement of female employees should be avoided.

The scope of work in which the engagement of female employees should be avoided is set forth in the Schedule hereto. The State Council's work safety regulatory department together with the State Council's human resources and social security administrative department and the State Council's health administrative department shall revise the scope of work in which the engagement of female employees should be avoided in line with socioeconomic development.

Article 5: An employer may not reduce a female employee's wage, dismiss her or terminate her employment or engagement contract on the grounds of pregnancy, maternity or nursing.

Article 6: If a female employee is not fit for her original work when pregnant, the employer shall, pursuant to a certificate from a medical institution, reduce the quantity of work she does or arrange other suitable work for her.

An employer may not require a female employee who is at least seven months pregnant to work overtime or schedule her to work the night shift, and shall arrange for a specific amount of rest time for her during working hours.

If a pregnant female employee undergoes a pre-natal examination during working hours, the time required therefor shall be counted as part of her hours worked.

Article 7: Once a female employee has given birth, she shall be entitled to 98 days of maternity leave, 15 of which may be taken before the birth. If she experiences a difficult birth, she shall be entitled to an additional 15 days of maternity leave; if she has a multiple birth, she shall be entitled to an additional 15 days of maternity leave for each additional infant.

If a female employee has a miscarriage before her fourth full month, she shall be entitled to 15 days of leave, and to 42 days if she has a miscarriage after four full months.

Article 8: The maternity allowance of a female employee during her maternity leave shall, if she is enrolled in a maternity insurance scheme, be paid from the maternity insurance fund at the rate of the average monthly wage of the employer's employees in the previous year; or, if she is not enrolled in a maternity insurance scheme, shall be paid by the employer at the rate of the female employee's wage before her maternity leave.

A female employee's medical expenses for birth or miscarriage shall be paid from the maternity insurance fund based on the items and at the rates specified by the maternity insurance scheme if she is enrolled in a maternity insurance scheme; or, if she is not enrolled, they shall be paid by the employer.

Article 9: When a female employee is nursing an infant of less than one year old, her employer may not have her work overtime or schedule her to work the night shift.

An employer shall schedule for a female employee in her nursing period one hour of nursing time each day during working hours. If a female employee has a multiple birth, she shall be accorded one extra hour of nursing time each day for each additional infant.

Article 10: An employer that has a relatively large number of female employees shall, as required by its female employees, establish facilities such as a female employee toilet, pregnant woman's break room and nursing room so as to duly resolve a female employee's difficulties in terms of physical hygiene and nursing.

Article 11: An employer shall prevent and halt any sexual harassment against female employees in the workplace.

Article 12: The human resources and social security administrative department and the work safety regulatory department of people's governments at the county level and above shall be responsible, within their respective purviews, for monitoring and inspection of the compliance by employers with these Provisions.

Labour unions and women's organisations shall monitor the compliance by employers with these Provisions in accordance with the law.

Article 13: If an employer violates the second paragraph of Article 6, Article 7 or the first paragraph of Article 9 hereof, the human resources and social security administrative department of the people's government at the county level or above shall order it to rectify the matter within a specified period of time and fine it at the rate of not less than Rmb1,000 and not more than Rmb5,000 for each female employee harmed.

If an employer violates Part One or Two of the Schedule hereto, the work safety regulatory department of the people's government at the county level or above shall order it to rectify the matter within a specified period of time and fine it at the rate of not less than Rmb1,000 and not more than Rmb5,000 for each female employee harmed. If an employer violates Part Three or Four of the Schedule hereto, the work safety regulatory department of the people's government at the county level or above shall order it to rectify the matter within a specified period of time and fine it not less than Rmb50,000 and not more than Rmb300,000; if the circumstances are serious, the work safety regulatory department of the people's government at the county level or above shall order it to suspend the relevant operation or recommend to the relevant people's government to order it to shut down based on the people's government's authority as specified by the State Council.

Article 14: If an employer violates these Provisions, thereby infringing the lawful rights and interests of its female employees, the female employees may, in accordance with the law, lodge a complaint, file a report, file an appeal or apply to an employment and public personnel mediation/arbitration institution for mediation/arbitration. If they are dissatisfied with the arbitration award, they may institute a legal action in a people's court in accordance with the law.

Article 15: If an employer violates these Provisions, thereby infringing the lawful rights and interests of its female employees and causing them harm, it shall compensate them in accordance with the law. If the violation by the employer and the manager directly in charge, and other directly responsible persons, constitutes a criminal offence, their criminal liability shall be pursued in accordance with the law.

Article 16: These Provisions shall be effective as of the date of promulgation. The Provisions for the Work Protection of Female Employees promulgated by the State Council on July 21 1988 shall be repealed simultaneously.

Schedule

Scope of Work in Which the Engagement of Female Employees Should be Avoided

1. Scope of work in which the engagement of female employees should be avoided

(1) operations in mining shafts;

(2) operations with a class 4 intensity of physical work as specified in the Classification on Intensity of Physical Work; and

(3) operations where a burden of more than 20 kilograms is carried at least six times per hour, or operations involving the intermittent carrying of burdens where such burdens each weigh more than 25 kilograms.

2. Scope of work in which the engagement of female employees should be avoided during menstruation

(1) class 2, 3 and 4 cold water operations as specified in the Classification of Work in Cold Water;

(2) class 2, 3 and 4 low temperature operations as specified in the Classification of Work in Cold Temperatures;

(3) operations with a class 3 or 4 intensity of physical work as specified in the Classification on Intensity of Physical Work; and

(4) class 3 and 4 operations at heights as specified in the Classification of Work at Heights.

3. Scope of work in which the engagement of female employees should be avoided during pregnancy

(1) operations where the concentration of toxic substances such as lead and its compounds, mercury and its compounds, benzene, cadmium, beryllium, arsenic, cyanide, nitrogen oxide, carbon monoxide, carbon disulphide, chlorine, caprolactam, chloroprene, vinyl chloride, ethylene oxide, aniline and formaldehyde in the air on the operation premises exceeds state occupational health standards;

(2) engagement in the production of anti-cancer drugs or diethylstilbestrol, or operations where there is contact with anaesthetic gases, etc.;

(3) working with unsealed radioactive sources or emergency dealing with nuclear accidents or radiation accidents;

(4) operations at heights as specified in the Classification of Work at Heights;

(5) cold water operations as specified in the Classification of Work in Cold Water;

(6) low temperature operations as specified in the Classification of Work in Cold Temperatures;

(7) class 3 and 4 operations as specified in the Classification of Work in High Temperatures;

(8) class 3 and 4 operations as specified in the Classification of Work Exposed to Noise;

(9) operations with a class 3 or 4 intensity of physical work as specified in the Classification on Intensity of Physical Work; and

(10) operations in confined spaces or high pressure chambers, underwater operations, operations that involve strong vibrations, or operations that require frequent bending over, climbing or squatting down.

4. Scope of work in which the engagement of female employees should be avoided during nursing

(1) items 1, 3 and 9 of the scope of work in which engagement should be avoided during pregnancy; and

(2) operations where the concentration of toxic substances such as manganese, fluorine, bromine, methanol, organic phosphorus compounds and organic chlorine compounds in the air on the operation premises exceeds state occupational health standards.