Jiangsu Province female workers abortion maternity leave and maternity allowance treatment standards

First, abortion maternity leave time

1. Conflicts of regulations

The 1988 edition of the "Provisions on Labor Protection for Female Employees" does not clearly stipulate the maternity leave time for pregnant women who have aborted pregnancy. It only stipulates that "when a female employee is pregnant with a miscarriage, the unit in which she is employed shall give maternity leave for a certain period of time according to the certificate of the medical department." The "Provisions on Labor Protection for Female Employees" was abolished in 2012 by the newly implemented "Special Provisions on Labor Protection for Female Employees".

On the basis of the “Provisions on Labor Protection for Female Employees”, Jiangsu Province formulated the “Measures for Labor Protection of Female Workers in Jiangsu Province”, which was implemented in 1989. This method gives different maternity leave time according to the pregnancy time of female employees, specifically: “pregnancy” Female workers who have aborted within three months shall be given maternity leave of 20 to 30 days according to the certificate of the medical unit; for maternity leave of more than three months and less than seven months, forty-two days of maternity leave; for more than seven months, maternity leave of ninety Day." At present, the method has not been abolished.

The Special Provisions on Labor Protection for Female Employees, implemented in 2012, abolished the 1988 edition of the Labor Protection Regulations for Female Employees. The new regulations clarify that “female workers who have not had a miscarriage for less than 4 months will enjoy 15 days of maternity leave; pregnancy will last for 4 months. Abortion, enjoy 42 days of maternity leave."

It can be seen from the above provisions that the 2012 Special Provisions on Labor Protection for Female Employees and the Measures for Labor Protection of Female Workers in Jiangsu Province that have not been abolished are in conflict with the provisions on abortion and maternity leave for female employees. In actual operation, which regulations should be followed. Execution?

2. How to implement?

First of all, from the perspective of legal hierarchy, the "Special Provisions on Labor Protection for Female Employees" is enacted by the State Council, and the "Administrative Measures for Women Workers in Jiangsu Province" is governed by the Jiangsu Provincial People's Government. The administrative regulations are less effective. Administrative regulations shall apply administrative regulations in the event of conflict between the two regulations.

Secondly, from the principle that the new law is superior to the old law, the Special Provisions on Labor Protection for Female Employees was implemented in 2012. The Measures for Labor Protection of Female Workers in Jiangsu Province was implemented in 1989, and the Special Provisions on Labor Protection for Female Employees is also effective. In the "Measures for Labor Protection of Female Workers in Jiangsu Province".

Furthermore, although the "Measures for the Protection of Female Workers in Jiangsu Province" has not been explicitly abolished, the "Provisions on Labor Protection for Female Employees" on which it was based has been abolished in 2012. If the skin does not exist, the hair will be attached.

It can be seen from the above analysis that maternity leave for female employees should be carried out in accordance with the Special Provisions on Labor Protection for Female Employees, that is, “female workers who have had a miscarriage less than 4 months of pregnancy will enjoy 15 days of maternity leave; if they have abortion after 4 months of pregnancy, they will enjoy 42 days. Maternity leave."

2. The calculation standard for the income generation allowance and the time for the birth allowance

1. Birth allowance calculation standard

The Social Insurance Law stipulates that the maternity allowance is calculated based on the average monthly salary of the employee in the previous year. The Regulations on Maternity Insurance for Employees in Jiangsu Province (No. 94 of the Jiangsu Provincial People's Government) implemented in 2014 further clarified that the maternity allowance is based on the average monthly salary of employees in the previous year.

2. Time for abortion to enjoy maternity allowance

In this regard, the "Social Insurance Law" does not clearly stipulate that the "Regulations on Maternity Insurance for Employees in Jiangsu Province" has different provisions on the enjoyment time of maternity benefits according to the different months of pregnancy. Specifically: "Abortion is less than 2 months after pregnancy, enjoy 20-day maternity allowance; 30-day maternity allowance for abortion after 2 months of pregnancy, less than 3 months of pregnancy; 3 days of pregnancy, less than 7 months of abortion, induction of labor, enjoy 42 days of maternity allowance; pregnancy 7 If you give birth in the month, you will enjoy a 98-day maternity allowance." This regulation is the basis for the current payment of maternity benefits in Jiangsu Province.

Lawyer reminded:

1. According to the regulations, if the maternity allowance is lower than the standard of maternity leave or pre-vacancy wages, the employer shall make up; if it is higher than the standard of maternity leave or pre-vacancy wages, the employer shall not intercept.

2. The time for maternity benefits and the time for abortion maternity leave are not the same.