Hong Kong Employment Law

Employees are entitled to a minimum of 7 to 14 days of statutory annual leave for each period of 12 months of employment. Employers are entitled to determine when annual leave shall be taken and must give 14 days prior notice in writing to the employee of the time that they have selected. Annual leaves shall be calculated on the basis of length of service as follows:

• • At least 1 year but less than 3 years – 7 days of leaves
  • At least 3 years but less than 4 years – 8 days of leaves
  • At least 4 years but less than 5 years – 9 days of leaves
  • At least 5 years but less than 6 years – 10 days of leaves
  • At least 6 years but less than 7 years – 11 days of leaves
  • At least 7 years but less than 8 years – 12 days of leaves
  • At least 8 years but less than 9 years – 13 days of leaves
  • At least 9 years – 14 days of leaves.

Timing of vacation – An employee shall take the paid annual leave to which he is entitled within the following period of 12 months. The time of the leave should be appointed by the employer after consultation with the employee or his representative, confirmed by a written notice to the employee at least 14 days in advance, unless a shorter period has been mutually agreed.

An employee shall be granted paid annual leave for one continuous period. However, vacation can be granted at the request of the employee in the below manner:

1. • In case, the leave entitlement does not exceed 10 days, then up to 3 days can be granted separately and the remaining should be granted consecutively.
   • In case, the leave entitlement exceeds 10 days, then at least 7 days should be granted consecutively.

Statutory day falling during annual vacation

Any rest day or statutory holiday falling within a period of annual leave shall be counted as annual leave and another rest day or holiday must be granted to the employee.

Annual leave must, however, be granted within 12 months of the end of the leave year, although in practice, most employers allow annual leave to be taken as it accrues. 

A “leave year” may either be the anniversary of the employee’s commencement of employment or such other date as the employer may elect so as to use a common leave year for all employees, such as a calendar year.

Annual Leave Pay

The daily rate of annual leave pay is a sum equivalent to the average daily wages earned by an employee in the 12-month period preceding the leave. If an employee is employed for less than 12 months, the calculation shall be based on the shorter period.

NOTE: In calculating the average daily wages, an employer has to exclude:

• • • The periods for which an employee is not paid his wages, shall include a rest day, statutory holiday, annual leave, sickness day, maternity leave, paternity leave, sick leave due to work injuries, or leave taken with the agreement of the employer, and any normal working day on which the employee is not provided by the employer with work; together with;
    • The sum paid to the employee for such periods.

Timing of payment – Holiday pay should be paid to the employee not later than the normal payday after the period of annual leave taken. 

Restriction on Pay in lieu of Leave

An employee may choose to accept payment in lieu of the part of his leave entitlement that exceeds 10 days. 

Common Leave Year – An employer may elect any period of 12 consecutive months as the common leave year for all of his employees. Should the employer wish to make this arrangement, they shall give  1  month’s notice either to each of their employees in writing or by posting a notice in a conspicuous place in the place of employment.  If an employee has not been employed for 12 months in the common leave year, the employer should calculate the leave entitlement on a pro-rata basis, and any fraction of a day resulting from the calculation should be counted as a full day’s leave. 

Annual Leave Shutdown – If an employer intends to close down the business or part of the business for granting annual leave to employees, the employer should inform the affected employees in writing at least one month in advance.  Where an employee is not yet entitled to paid annual leave in respect of any day during the period of the shutdown but has to stop work as a result, the employee should be granted paid annual leave during that whole period.  If the annual leave an employee is entitled to exceeds the number of days of shutdown, the employee may take the remaining annual leave immediately following the shutdown. 

Payment of Annual Leave Pay on Termination of Employment Contract

A leave year means any period of 12 months commencing on the day on which his employment commenced and an anniversary of such day.

An employee whose employment is terminated is entitled to payment in lieu of any annual leave not yet taken. An employee who has 3 but less than 12 months of employment in a leave year and is terminated is entitled to pro rata annual leave pay. Sec 41AA – 41G, Employment Ordinance.

An employee employed under a continuous contract is entitled to sickness allowance if the sick leave taken is not less than four consecutive days (unless for any day off taken by a female employee for her pregnancy check-ups, post confinement medical treatment or miscarriage, any such day on which she is absent shall be counted as a sickness day and, should be supported by an appropriate medical certificate. The employee is required to have accumulated a sufficient number of paid sick days in order to be eligible.

An employee shall not be entitled to sickness allowance under the following circumstances:

• • • The employee, without reasonable excuse, refuses treatment by a company doctor of a medical scheme recognized by the Director of Health or disregards the advice of the doctor.;
    • The sickness day falls on a statutory holiday on which the employee is entitled to holiday pay; or
    • Compensation is payable under the Employees’ Compensation Ordinance.

The sick leave is supported by:  

• • • an appropriate medical certificate (regarding an employee’s medical examination in relation to her pregnancy, may also be supported by a certificate of attendance1 apart from a medical certificate); or  
    • regarding the absence from work of an employee by reason of his / her compliance with a specific anti-epidemic requirement with a movement restriction imposed under the Prevention and Control of Disease Ordinance, the employee is required to produce proof of such requirement.

Sickness Allowance 

The daily rate of sickness allowance is a sum equivalent to 4/5th of the average daily wages earned by an employee in the 12-month period preceding the sick leave. If an employee is employed for less than 12 months, the calculation shall be based on a shorter period. Sickness allowance should be paid to the employee not later than the normal payday.

In calculating the average daily wages, an employer has to exclude:

• • 1. • The periods for which an employee is not paid his wages shall include a rest day, statutory holiday, annual leave, sickness day, maternity leave, paternity leave, sick leave due to work injuries or leave taken with the agreement of the employer, and any normal working day on which the employee is not provided by the employer with work; together with;
       • The sum paid to the employee for such periods.

Accumulation of Paid Sickness Days 

An employee can accumulate paid sickness days after having been employed under a continuous contract. Paid sickness days are accumulated at the rate of 2 paid sickness days for each completed month of the employee’s employment during the first 12 months, and four paid sickness days for each completed month of employment thereafter.

Paid sickness days can be accumulated throughout the whole employment period, but shall not exceed 120 days at any one time.

Paid sickness days are divided into two categories- 

• • • • • • Category One – 36 Days – supported by a medical certificate issued by a registered medical practitioner, a registered Chinese medicine practitioner, or a registered dentist.
          • Category Two – 84 Days –  The sickness days taken exceed the number of paid sickness days remaining in Category One. If required by the employer, a medical certificate* issued by a registered medical practitioner, registered Chinese medicine practitioner or registered dentist attending the employee as an out-patient or in-patient in a hospital should be produced. The medical certificate should specify the number of days on which, and the nature of the sickness or injury on account of which, the employee is unfit for work.

Sec 33 – 37, Employment Ordinance.

Special Leave with pay may be granted in certain circumstances, such as the –

• • • • • an employee is entitled to 2 days of paid leave for the birth of a child,
        • an employee is entitled to 10 days of paid leave for marriage purposes
        • an employee is entitled to 3 days of paid leave in case of death of a relative,
        • an employee is entitled to paid leave to attend an examination in secondary or university education for 2 days for each examination with a ceiling of 10 days per year.

Female employees who have been continuously employed with the same employer for at least 4 weeks or more and work for at least 18 hours each week are eligible for 14 weeks of paid maternity leave if the actual date of confinement is on or after such date.

In cases where the delivery occurs later than the expected date of delivery, employees are entitled to a further period equal to the number of days from the day after the expected delivery date to the actual date of delivery.

An additional period of leave for not more than 4 weeks on the grounds of illness or disability due to the pregnancy or delivery is also granted to employees.

Taking Maternity Leave 

• • • With the agreement with the employer, a pregnant employee may decide to commence her maternity leave from two to four weeks before the expected date of confinement; 
    • If the employee does not decide on the date or fails to secure her employer’s agreement, the employee shall commence her maternity leave 4 weeks before the expected date of confinement; 
    • Maternity leave commences on the date of confinement if it occurs before the scheduled maternity leave. In this case, the employee should give notice of the date of confinement and her intention to take 14 weeks of maternity leave to her employer within seven days of her confinement.

Pay – An employee is eligible for maternity leave pay if she has been employed under a continuous contract for not less than 40 weeks immediately before the commencement of scheduled maternity leave. 

The daily rate of the additional four weeks’ maternity will be four-fifths of the employee’s average daily wages.  If an employee is employed for less than 12 months, the calculation shall be based on the shorter period. The 4-week maternity leave pay for the 11th to 14th week of the maternity leave is subject to a cap of $80,000.

Employers shall after payment of maternity leave pay on the normal payday, may apply to the Government for reimbursement of the 11th to 14th weeks of maternity leave pay.

No payment of maternity leave pay or other sum may be made in lieu of the grant of maternity leave.

With the agreement of the employer, a pregnant employee may decide on the date of commencement of the maternity leave provided that such date is not less than 2 weeks before, and not more than four weeks before the expected date of confinement. If an agreement cannot be reached, the maternity leave period will commence four weeks before the expected date of confinement.

Medical Examination – When the employee’s absence from work to attend a medical examination in relation to her pregnancy, post-confinement medical treatment, or miscarriage is supported by an appropriate medical certificate, any such day on which she is absent shall be counted as a sickness day. 

Medical Certificates / Certificates of Attendance – Employees shall submit medical certificates/certificates of attendance issued by registered medical practitioners, registered Chinese medicine practitioners, registered midwives, or registered nurses, if so required by employers where applicable, to be eligible for maternity protection. 

A female employee who suffers miscarriage at or after 24 weeks of pregnancy will be entitled to maternity leave subject to other conditions. Sec 12A – 15C, Employment Ordinance.

A male employee is entitled to 5 days’ paternity leave for each confinement of their spouse/partner if –

• • • • • • • • • He is the father of a newborn child or a father-to-be;
                • Has been employed under a continuous contract (i.e. employed continuously by the same employer for 4 weeks or more and has been working for at least 18 hours each week); and
                • Has given the required notification to the employee.

An eligible male employee may take paternity leave at any time during the period from 4 weeks before the expected date of delivery of his child to 14 weeks beginning on the actual date of delivery of his child. He may take all 5 days of paternity leave in one go or on separate days.

The employee must notify his employer of their intention to take paternity leave at least 3 months before the expected date of delivery of the child (exact date of leave not required at this stage), and the date of his paternity leave before taking the leave. If the employee fails to give the abovementioned 3 months’ advance notice to the employer, they must notify the employer of his date of paternity leave at least 5 days before that date.

Payment of Paternity Leave

A male employee is entitled to paternity leave pay if the employee has been employed under a continuous contract for at least 40 weeks prior to the day of paternity leave. In order to avail of the leave pay, a male employee shall satisfy the following prerequisites i.e. the employee shall give the employer all the necessary documentation by the end of (whichever period expires first) 12 months after the first day of paternity leave taken, or the employee must stop working within 6 months of ceasing employment.

 Rate of paternity leave pay

The daily rate of paternity leave pay is a sum equivalent to four-fifths of the average daily wages earned by an employee in the 12-month period preceding the day of paternity leave. If an employee takes more than one day of paternity leave consecutively, the daily rate of paternity leave pay is a sum equivalent to four-fifths of the average daily wages earned by the employee in the 12-month period preceding the first day of paternity leave. If an employee is employed for less than 12 months, the calculation shall be based on the shorter period.

If the child is born dead or dies after birth and no birth certificate has been issued in respect of the child, an employee is entitled to paternity leave pay if the employee can produce a medical certificate certifying the delivery of the child. If required by the employer, the employee must also provide a written statement stating that the father of the child was delivered by the woman named in the medical certificate; and the child is stillborn or dies after birth, whichever is appropriate.

Documentation Requirement – 

• For birth in Hong Kong: the birth certificate of the child on which the employee’s name is entered as the child’s father. 
• For birth outside Hong Kong: the birth certificate of the child issued by the authorities of the place and on which the employee’s name is entered as the child’s father (or if the authorities of the place do not issue birth certificates, any other document issued by the authorities that could reasonably be taken as proof that the employee is the child’s father). Sec 15E – 15L, Employment Ordinance.