PathFinders provides employers with information about their legal obligation, and recommends options and solutions when their Foreign Domestic Workers are pregnant or on maternity leave.
Your rights and obligations as an employer of a pregnant foreign domestic worker
1My Foreign Domestic Worker is pregnant, what should I do?
Understandably, sudden news of your domestic worker being pregnant may bring challenges and mixed feelings - from sharing her joyous anticipation to feeling anxious and worried about how her pregnancy is going to affect the running of your household. Issues such as whether your domestic worker can cope with the demands of her job while ensuring her safety, and finding alternative care for your young children during the period when she is unable to work, are real and valid concerns. Understanding your legal rights and obligations as an employer and having an open communication with your domestic worker about the relevant issues are the first steps to tackling the challenges and finding practical solutions.
2Is my Foreign Domestic Worker legally allowed to be pregnant in Hong Kong?
Yes. There is no law prohibiting any female workers in Hong Kong, including foreign domestic workers, from being pregnant. In fact, it is a right protected by the Hong Kong Bill of Rights.
3What are my rights and obligations as an employer if my Foreign Domestic Worker becomes pregnant?
You are entitled to ask your domestic worker to provide you with a copy of her medical certificate confirming her pregnancy and the expected date of delivery.
If your domestic worker has been advised by a doctor that handling heavy items or performing certain tasks may be harmful to her pregnancy, you may not require her to perform such tasks. You may require her to provide you with a medical certificate confirming such recommendation from the doctor.
If your domestic worker has not notified you of the date she intends to commence her maternity leave, it would be advisable to discuss and decide this with her; and find out whether she plans to stay in Hong Kong or return to her home country during her leave.
If you have employed your domestic worker for not less than 40 weeks immediately before the start of her maternity leave, you also have an obligation to pay her maternity leave pay. This is calculated as four-fifth or 80% of her normal wages. If you have employed her for at least 4 weeks but less than 40 weeks, then she is entitled to maternity leave without pay.
Maternity leave pay is due on your domestic worker’s normal pay day and must be paid within 7 days.
4Can I terminate my Foreign Domestic Worker’s contract after she informs me that she is pregnant?
No. Under the Hong Kong Employment Ordinance, unless you have a valid reason, it is unlawful for you to dismiss a pregnant domestic worker from the date her pregnancy was confirmed up to the date of the expiry of her maternity leave.
If you dismiss a pregnant domestic worker without a valid ground, you may be liable to prosecution and, if found guilty, to a fine of up to $100,000.
Valid grounds for termination include, but are not limited to: (1) wilful disobedience of a reasonable and lawful order, (2) serious misconduct, (3) habitual neglect of duties, (4) fraud or dishonesty.
If you dismiss your domestic worker on the grounds of her pregnancy, this is also a breach of the Sex Discrimination Ordinance.
5What should I do if my Foreign Domestic Worker informs me that she is pregnant immediately after I have given her a notice of termination?
Under the law, you have to immediately withdraw the termination, unless there is a valid reason for such termination.
6I am concerned about how I will be able to manage with a pregnant Foreign Domestic Worker. I need information on what my options are.
We understand that dealing with the various issues associated with having a pregnant Foreign Domestic Worker can be overwhelming. For further information on how these issues can be addressed, please refer to our guide book which will walk you through a step by step process for finding practical solutions.
7Do I have to pay for my Foreign Domestic Worker’s pregnancy-related expenses?
No. Your domestic worker is responsible for all the expenses related to her pregnancy and the delivery of her baby, including medical fees and her baby’s needs.
8Can my Foreign Domestic Worker have her baby in Hong Kong?
Yes. However, she would need to be aware this does not necessarily mean her baby will automatically gain permanent residency status in Hong Kong. If the child is born in Hong Kong and has a parent who is a Hong Kong Permanent Resident, the child may be eligible for right of abode.
9Do I have an obligation to provide accommodation to my Foreign Domestic Worker’s child as well?
You are not obliged to provide accommodation to your domestic worker’s child, but you may allow the child to live with its mother in your home if you wish.
Maternity leave arrangement
1Is my Foreign Domestic Worker entitled to maternity leave?
All pregnant female employees in Hong Kong, including foreign domestic workers who have been employed under a continuous contract (i.e. not less than 4 weeks) are entitled to 10 weeks of maternity leave which may commence from 2 to 4 weeks before her expected date of delivery.
2Can my Foreign Domestic Worker live out during her maternity leave?
Under the standard employment contract for foreign domestic workers, they may only reside in the home of their employer at the address specified in the contract. There is no exception for when a domestic worker is on maternity leave unless she takes her leave outside Hong Kong. While it may be possible to request permission from the Labour and Immigration Department to allow your domestic worker to stay in an alternative accommodation, this is rarely granted and only in exceptional circumstances.
3If my Foreign Domestic Worker decides to return to her home country during her maternity leave, what are the things that we need to consider?
You need to be aware that airlines have restrictions on pregnant travellers. Most airlines do not accept passengers who are more than 35 weeks pregnant. You may wish to discuss the possibility of your domestic worker taking an earlier leave, whether paid or unpaid, before her scheduled maternity leave, while she can still travel by air.
You may also wish to discuss with her the options for paying her during maternity leave. If she does not have a Hong Kong bank account, it would be convenient for you both if she sets one up before she leaves Hong Kong. She will also need to ensure she can access the bank account while outside Hong Kong to be able to receive your payments to her account.
Your Foreign Domestic Worker can find out more about how to open a bank account in Hong Kong here: https://enrichhk.org/what-are-requirements-if-i-want-open-bank-account-here-hong-kong
4Am I responsible for paying for my Foreign Domestic Worker’s flight if she decides to return to her home country during her maternity leave?
No, your domestic worker is responsible for her own travel expenses if she returns to her home country during her maternity leave. If you do offer to pay for her airfare so that she can travel home, clarify to her whether it is a gift or a loan that must be repaid at a later date to avoid any misunderstanding.
There is no statutory guideline for employers to provide meal allowance to their domestic workers during maternity leave. However, it is always good to discuss this with your domestic worker, so you are both in agreement.
We recognise that there may be difficulties in hiring a substitute foreign domestic worker whilst your foreign domestic worker is on maternity leave. As you are not allowed to employ a Foreign Domestic Worker on a part-time basis, especially one who is on a full-time contract with another employer; you may wish to consider hiring a temporary part-time local domestic worker who does not require a visa, or part-time cleaners and/or babysitters. You may also wish to consider seeking help and support from friends, relatives and your trusted contacts from religious, interest and support groups during this time.
More information about hiring local domestic helpers can be found here: http://www.gov.hk/en/residents/employment/recruitment/localdomestichelper.htm
Here are some resources for your consideration:
Local Domestic Help
Smart Living by Employees Retraining Board: www.erb.org/smartliving
HelloToby (Home Maid): www.hellotoby.com
Smart Home: www.shome.com.hk
Merry Maids: http://www.merrymaids.com.hk/
Top Maids Home Cleaning Co: http://www.topmaid.com.hk
The Nanny Experts: www.thenannyexperts.hk
Smart Living by Employees Retraining Board: www.erb.org/smartliving
Active Global Specialised Caregivers: www.activeglobalcaregiver.hk
The above information, accurate as at April 2020, is provided as resources and not necessarily endorsed by PathFinders.