PathFinders supports employment agencies by equipping them with information, resources and facilitation skills to successfully manage the situation of a MDW pregnancy with employers and domestic workers.
Employers of pregnant MDWs can access our practical guidebook, produced jointly with Helpwise, to navigate their next steps.
Legal Entitlement of Migrant Domestic Workers and Obligations of Employers
1Can a Migrant Domestic Worker resign due to pregnancy?
Yes, according to the standard employment contract, a Migrant Domestic Worker (MDW) is allowed to resign by providing one month notice or paying one month’s salary in lieu of notice. Notice of contract termination must be submitted to the Immigration Department within seven days.
2What should both Migrant Domestic Workers and employers be aware of when the Worker is pregnant?
Notification of Pregnancy
A Migrant Domestic Worker (MDW) needs to provide her employer with a copy of her medical certificate confirming her pregnancy and the expected date of delivery.
Safe Working Environment
All pregnant working women are entitled to a safe working environment. If a Migrant Domestic Worker (MDW) has been advised by a doctor that handling heavy items or performing certain tasks may be harmful to her pregnancy, employers may not require her to perform such tasks. Employers may require their MDW to provide them with a medical certificate confirming such recommendations from the doctor.
Maternity leave in Hong Kong is 14 weeks - up from 10 weeks with effect from 11 December 2020.
A pregnant Migrant Domestic Worker (MDW) will need to notify her employer of the date she intends to commence her maternity leave. If she has not done so or is unsure, it would be advisable for both parties to discuss; and find out whether the MDW plans to stay in Hong Kong or return to her home country during her maternity leave.
Maternity Leave Pay
If employers have employed their MDW for not less than 40 weeks immediately before the start of her maternity leave, they also have an obligation to pay her maternity leave pay. This is calculated as four-fifth or 80% of her normal wages. Maternity leave pay is due on a MDW’s normal pay day and must be paid within 7 days. If employers have employed their MDW for at least 4 weeks but less than 40 weeks, then she is entitled to maternity leave without pay.
If a Migrant Domestic Worker began employment with an employer on 1st January 2020 and begins taking maternity leave from 1 February 2021, she is entitled to maternity leave pay. If her monthly salary is $4,800, her total maternity leave pay would be calculated as follows:
Daily rate: $4800/365 x 12 x ⅘ = $126.25
Total maternity leave pay over the 14 week period: $126.25 x 98 days = $12,372.50.
Maternity Leave Pay - Government Reimbursement Scheme for Additional 4 Weeks (From 11 December 2020)
MDW employers may apply to the Government’s reimbursement scheme to cover the additional 4 weeks of maternity leave pay, to be implemented in the first half of 2021.
As the Scheme is not in place yet, employers need to keep relevant employment records and other related documents of pregnant MDWs in order to apply for reimbursement later.
The relevant documents to be kept by employers include:
Proof of the MDW’s pregnancy;
Payment records of maternity leave pay to the MDW; and
The MDW’s salary records for the 12 months immediately before the commencement of maternity leave.
3What should employers do if their Migrant Domestic Worker informs them that she is pregnant immediately after they have given her a notice of termination?
Under the law, employers will have to immediately withdraw the termination, unless there is a valid reason for such termination.
4Can employers end their pregnant Migrant Domestic Workers’ employment contract?
No. Under the Hong Kong Employment Ordinance, unless the employers have a valid reason, it is illegal for them to dismiss a pregnant Migrant Domestic Worker (MDW) from the date her pregnancy was confirmed up to the date of the expiry of her maternity leave.
If employers dismiss a pregnant MDW without a valid ground, they 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 employers dismiss their MDW on the grounds of her pregnancy, this is also a breach of the Sex Discrimination Ordinance.
5Can Migrant Domestic Workers take time-off when she goes for her pregnancy-related medical check-ups?
Yes. If a Migrant Domestic Worker (MDW) needs to attend a medical examination in relation to her pregnancy or require medical treatment after she has given birth, any day on which she is absent from work for such examination or treatment will be considered a paid sickness day which means she is entitled to sickness allowance. MDWs need to request for an attendance certificate from the medical professionals, and produce it to their employers.
6Are Migrant Domestic Workers legally allowed to be pregnant during their employment contract?
Yes. There is no law prohibiting any female worker in Hong Kong, including Migrant Domestic Workers, from being pregnant. In fact, it is a right protected by the Hong Kong Bill of Rights.
7Do employers have to cover their Migrant Domestic Worker’s pregnancy-related expenses?
No. A Migrant Domestic Worker (MDW) is responsible for all the expenses related to her pregnancy and the delivery of her baby, including medical fees and her baby’s needs.
Arrangement During Maternity Leave
1Can Migrant Domestic Workers live out during maternity leave?
Under the standard employment contract for Migrant Domestic Workers (MDW), they may only reside in the home of their employer at the address specified in the contract. There is no exception for when a MDW 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 MDW to stay in an alternative accommodation, this is rarely granted and only in exceptional circumstances.
Supporting employers and migrant domestic workers
1We often feel stressed about managing the Employers’ expectations and the Workers’ entitlements to pregnancy. How can we better manage this situation as an Agency?
It is understandable to feel caught in the middle between employers and workers. As a woman worker in Hong Kong, female Migrant Domestic Workers (MDW) are entitled to equal maternity protection.
It is common for both employers and MDWs to feel emotional when an MDW is pregnant. Employers feel anxious about coping without an MDW when the worker is on maternity leave, as well as the financial pressure of maternity leave salary and cost of a temporary local domestic worker. A pregnant MDW, on the other hand, feels stressed about her job security, as well as financial pressure of raising the child - particularly when the pregnancy is not planned.
As an agency, you can encourage both parties to take a bit of time to process the news and gather more information before coming together again to discuss openly the best possible plan.
Agencies can support employers of pregnant MDWs with this practical guidebook, produced jointly with Helpwise, to navigate their next steps. They can also refer to PathFinders’ Employers FAQ Page for more information. Pregnant MDWs are encouraged to call our hotline +852 5190 4886 to seek advice from our Case Managers and refer to our MDW FAQ Page for more information.
The key issues both parties should discuss are:
Managing Pregnancy and Work Duties
Every woman experiences pregnancy differently. Some have an easy pregnancy, with hardly any ‘morning sickness’, whilst others have a challenging time with severe sickness and fatigue. Encourage employers and MDWs to be flexible during this time. For example, employers could support MDWs by allowing frequent breaks for the MDW throughout the day, and switching to online grocery shopping so MDWs can avoid lifting heavy groceries.
Where to Give Birth and Take Maternity Leave
It would be ideal to discuss as early as possible where the MDW would like to give birth and take her maternity leave. If the MDW chooses to do so in her home country, the employer would need to consider airline policies about flying when pregnant; and allow the MDW to commence her maternity leave earlier.
If the MDW prefers to give birth and have her maternity leave in Hong Kong, she and her employer would need to discuss post-delivery living arrangements. Employers are not legally obligated to bear expenses related to the baby, or provide housing for the baby. Yet at the same time, MDWs are not legally allowed to live out due to the “live-in” rule.
A number of employers understandably struggle to accommodate a newborn baby as they live in a small flat. Some employers PathFinders has spoken with, including parents of young children, expressed their reluctance to live with a newborn due to a baby’s frequent crying.
While it may be possible to request permission from the Labour and Immigration Department to allow MDWs to stay in alternative accommodation, this is rarely granted and only in exceptional circumstances.
Highlight to both employer and MDW the importance of good communication. Not only will it enhance the employer and employee relationship, but it will also contribute to the successful development of a win-win plan that works for both parties.
2An employer just called to let us know that her Migrant Domestic Worker is pregnant. She seemed very upset. She said she would like her Worker to leave and wanted us to find her another Migrant Domestic Worker. What should we tell her?
We understand that this could be a challenging situation for many employment agencies, as employers are paying for the services of agencies. Besides highlighting that Migrant Domestic Workers are entitled to equal maternity protection in Hong Kong, it is important for agencies to take the time to understand the concerns of employers.
PathFinders found out that the three common challenges faced by most employers during a MDW pregnancy are:
1. Financial stress of maternity leave pay and alternative temporary help;
2. Lack of available and viable options to provide temporary support while their MDW is on maternity leave - especially for those with young children and/or elderly parents;
3. "Live-in" policy that requires a MDW to live in the employer's home.
Some employers also fear losing employment. A number employers would prefer not to make adjustments at their workplace (for example, taking leave and time-off) when faced with a MDW pregnancy, but struggle to find temporary solutions to meet their household needs while maintaining their employment.
As much as it is essential to explain to employers their legal obligations, it is vital to ensure that employers are supported and their needs are met. Here are some creative and affordable options for employers when their MDW is on maternity leave. The government is subsidising 4 weeks of maternity leave salary, and MDW employers can apply for reimbursement to help ease their financial burden.
Agencies can support employers of pregnant MDWs with this practical guidebook, produced jointly with Helpwise, to navigate their next steps. They can also refer to our Employers FAQ Page for more information. Employers are also welcome to contact PathFinders directly at firstname.lastname@example.org and + 852 5500 5486.
Encourage employers to take some time to process the news, gather essential information and arrange for a time to speak with their MDW. Highlight the importance of open communication so a win-win plan can be developed for both parties.