Pregnant Women May Now Be Put on Unpaid Leave without Labor Ministry Approval

In light of the COVID-19 crisis, many employers, including many of our clients, have been forced to send their employees to unpaid leave. However, in the case of pregnant women, women and men undergoing infertility treatment, and women returning to work after maternity leave, employers are required to apply to the Supervisor under the Women Employment Law in the Ministry of Labor to obtain a special permit for such unpaid leave. Employers who do not apply for such a permit and act on their own are exposed to criminal liability and civil claims. 

This has led to tens of thousands of applications for permits flooding into the Ministry of Labor, making it difficult for employers as well as the ministry itself.

In light of the difficulty, regulations were signed on April 6, 2020 that allow these employees to be put on unpaid leave, under certain conditions, without the need for a permit from the Ministry of Labor. For your convenience, we have provided a brief explanation of the new regulations for you.

Who do the regulations apply to?

The regulations apply to workers protected under section 9A of the Women Employment Law, including pregnant employees, employees undergoing infertility treatment and reproductive care, employees engaged in surrogacy adoption, employees returning to work during the 60 days after maternity leave, and employees residing in a battered women’s shelter.

What are the criteria that allow an employer to refrain from applying to the Supervisor for a permit?

• The employer initiated the unpaid leave.
• The unpaid leave is for a specific period – a minimum of 30 days and a maximum of 60 days.
• There is no connection between the unpaid leave and the pregnancy/infertility treatments/childbirth, etc.
• The unpaid leave is a last resort, and the employer has done everything in its power to find another suitable position at the same scale and without harming the employee’s working conditions, albeit without success.
• The employee agreed, in writing, to the unpaid leave.
• The decision regarding the unpaid leave was made after one of the following: (i) Business activity was restricted in light of the spread of the COVID-19, due to instructions or directives issued under the Public Health Ordinance or the Emergency Regulations, or by other competent authorities. (ii) Business activity was reduced due to service or work performed for another business whose activity was restricted or reduced, as stated.
• Other employees, who are not protected under the circumstances described above, were also put on unpaid leave.
• The estimated date of birth does not fall within the 30 days following the initial date of the unpaid leave.
• The employee is employed in the private sector only.

When will the arrangement apply?

The arrangement applies retroactively to those who were put on unpaid leave as of March 15, 2020, or thereafter.

What if I applied to the Ministry of Labor and it has not yet made a decision on my application?

Anyone who already applied for a permit before April 6, 2020, and meets the above criteria can put employees on unpaid leave without waiting for the Supervisor’s decision.

If you do not meet the above criteria, you must notify the Ministry of Labor and request that the Supervisor review the request.

And if I already received a permit for unpaid leave? 

If a permit has already been granted, it will be deemed to have been granted at the beginning of the unpaid leave or on March 15, 2020, whichever is later.

Is there anything else I should know?

These regulations do not derogate from any right or obligation imposed on an employer, including a collective agreement or an employment contract. In addition, the regulations are not valid in cases where the employer wishes to dismiss or reduce the scope of employment and reduce wages. In such cases, the employer must apply and obtain a permit from the Supervisor. (Of course, the employee’s authentic consent makes acceptance of the application easier).

In addition, we would like to draw your attention to the fact that pursuant to the Emergency Regulations dealing with unemployment benefits, filing a claim for unemployment benefits from March 15, 2020, through July 7, 2020 (even without registering with the Employment Service Bureau), may qualify the employee for unemployment benefits as of March 15, 2020, or the date of termination of employment, whichever is later.

Given the rapid changes, we strongly encourage employers to reach out to our Employment Department with any issues regarding their specific employment-related situations.