June 2023
Elizabeth Pai and Sean Tang
To carry out the spirit of maternal protection under the Constitution, the Ministry of Labor promulgated the Amendments to Article 9 of the Regulations of Leave-taking of Workers on May 1, 2023 by considering the gist of Article 21, Paragraph 2 of the Act of Gender Equality in Employment (hereinafter, the “Gender Equality Act”). The Amendments specifically provide that if an employee who suffers a miscarriage within the first three months of pregnancy takes ordinary sick leave instead of maternity leave, the employer may not deduct her attendance bonus. The above-mentioned Amendments came into effect on May 3, 2023.
The Amendments were made since Article 15, Paragraph 1 of the current Gender Equality Act contains provisions on maternity leave of eight weeks, four weeks, one week, and five days, respectively, for circumstances such as “before and after delivery”, and miscarriage for “pregnancy over three months” , “pregnancy between two months and three months” and “pregnancy less than two months” . As for the calculation of wages during maternity leave, it is governed by relevant laws and regulations. However, Article 50 of the Labor Standards Act only stipulates the requirement for paid maternity leave of eight weeks and four weeks (the wages will be halved if the employees have been employed for less than six months).
In other words, for a female worker suffering a miscarriage within the first three months of pregnancy, if she takes one week or five days of maternity leave under the Gender Equality Act, the relevant laws and regulations are silent about any paid leave. Therefore, some female workers may choose to take ordinary sick leave during such a period pursuant to the Regulations of Leave-Taking of Workers. In such cases, the employer should pay half of the wages for the ordinary sick leave that does not exceed 30 days within a year. However, the question arises whether the employer can withhold the attendance bonus when a female worker chooses to take ordinary sick leave instead of maternity leave under the Gender Equality Act, which prohibits the employer from treating the leave as absence, which affects the worker’s attendance bonus (Article 21, Paragraph 2 of the Gender Equality Act). In the past, the law did not contain any specific provision on this aspect.
To avoid doubt, the Ministry of Labor amended Article 9 of the Regulations of the Leave-taking of Workers, specifically stipulating that the employer shall not withhold the attendance bonus when an employee takes ordinary sick leave due to miscarriage within the first three months of pregnancy. If an employer withholds the attendance bonus, which is verified by the local labor authority, the employer will be subject to a fine of NT$20,000 to NT$1,000,000 in accordance with law.
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