By Xu Xiaodan, Yang Zi King & Wood Mallesons’ Commercial & Regulatory group.
There was a classic answer on Zhihu (a Chinese question-and-answer online platform like Quora), “Afraid of being poor, being dead and being lazy, because for my parents, all they have is me”.
When an only child is young, he/she may be taken very good care of by everyone in the family, but when the child grows up, he/she will suffer from the pressure of living and loneliness. The over three-decade-long one-child policy has led to over 218 million only children in China. As the only child generation under the particular historical background, they are faced with unprecedented pressure and difficulties, especially in taking care of their ill parents.
Recently, the Legal Affairs Office of Sichuan Province released the Amended Draft Regulation of Sichuan Province on Protection of the Rights and Interests of the Elderly (Draft for Comments). This regulation provides that “for an only child whose parent is over 60 and hospitalized, an employer shall support the only child in taking care of the parent and offer no less than 3 days’ paid elderly care leave per year. The salary and benefits during such leave shall remain unchanged.” The only child elderly care leave then stimulated wide discussion. Sichuan province is not the first to come up with this idea and issue this regulation. Sincethe Law of the People’s Republic of China on Protection of the Rights and Interests of the Elderly was amended in 2015, several local regulations were issued to protect the rights and interests of the elderly and solve the problems of pension and medical treatment. These regulations are summarized as follows:
To sum up, duration of the leave in Henan Province is the longest followed by Hubei Province. While Hubei sets no ceiling on length; therefore, if an employer approves, the length of the leave in Hubei Province could be longer than that in Henan Province. Furthermore, the conditions for the leave in various regions are basically “being an only child family”, “parent over 60 and in hospital” with salary and benefits remain unchanged during leave. However, there are still worries about whether the leave they need will come true. So, has the only child elderly care leave really arrived? With some basic analysis of regulations in different regions, we may inevitably raise the following questions:
|Number||Province||The length of the care leave (per year)||Effective date|
|1||Henan||No more than 20 days||2016.05.27|
|2||Fujian||No more than 10 days||2017.03.01|
|3||Guangxi||No more than 15 days||2017.09.01|
|4||Hainan||No more than 15 days||2017.09.01|
|5||Guangdong||The employer shall provide necessary support to the only child for taking care of his/her parents.||2017.11.01|
|6||Hubei||Only child: no less than 15 days;
Non-only child: no less than 10 days
|7||Heilongjian||Only child: 20 days
Non-only child: 10 days
|8||Sichuan||No less than 3 days||To be determined|
|9||Chongqing||No more than 10 days||To be determined|
|10||Yunnan||No more than 15 days||To be determined|
|11||Guangzhou||No more than 15 days||To be determined|
Question 1: How does an employee apply for the leave? And what materials should be provided?
As to how to apply for the elderly care leave and what supporting documents need to be provided, the regulations have no clear provisions. If an employee applies for sick leave, annual leave or other leaves, they will follow the employee handbook or other relevant internal policies. However, it appears that most employers have not amended their internal policies to incorporate relevant provisions on the only child elderly care leave. This gives problems to employees. To deal with the problem, on one hand, detailed implementing rules should be made, and on the other hand, employers should incorporate the only child elderly care leave into the benefits of employees.
Question 2: Can employees who are not only child apply for the elderly care leave?
Even though in the age of one-child policy, there were families in many regions that did not follow the policy. Non-only child families are still faced with the burden of taking care of ill parents even with siblings to rely on. If the right to take the elderly care leave is only given to an only child, it appears to be unfair. Among existing local regulations, Heilongjiang Province and Hubei Province also provide employees who are not only children with relatively shorter elderly care leave. This seems to be more reasonable and takes the needs of all parties into consideration. More regions may follow the practice in the future.
Question 3: What if an employer does not approve the elderly care leave?
There are hardly any remedies in the regulations of most provinces for employees if an employer does not approve the leave or pay full salary. Currently only Fujian Province and Yunnan Province have clear provisions. Regulations of Fujian Province provide that “if relevant institutions or organizations do not pay an only child salary and benefits that he/she is entitled to while he/she is taking care of his/her ill parents, the Human Resources and Social Security Department or competent departments shall order the payment to be made within a given period”; in Henan Province, “for any failure in paying an only child salary and benefits that he/she is entitled to while he/she is taking care of his/her ill parents, the competent department shall order the payment to be made within a given period. If still not paid, the government above county level shall circulate a notice of criticism”.
Question 4: Are the conditions for taking the elderly care leave reasonable?
Almost all the provinces set the conditions for taking the elderly care leave as “parent over 60 and in hospital”. However, ill parents who are under 60 or those with severe chronic diseases (such as Alzheimer’s disease, depression); though they are not in hospital, also need to be taken care of. Setting too strict conditions for taking elderly care leave may not be in line with the original intention of creating the leave scheme. Flexible conditions allowing employees more time to take care of their parents are what they really need.
Question 5: What if an only child does not spend the elderly care leave on taking care of parents?
It was reported that an employee who went traveling during sick leave shared photos on WeChat was dismissed after the photos were seen by the employer. So, what if an only child does not spend the elderly care leave on taking care of parents? As the term of the elderly care leave is relatively long, if employees apply for the leave and use it together with the Spring Festival holiday or the National Day holiday, will there be many employees not showing up in office for a month? Whether the elderly care leave is spent on taking care of parents depends on employees themselves. Difficulties in supervision or management should not be an obstacle to the implementation of the elderly care leave. To ease their worries, employers may improve management system and guide their employees to take the elderly care leave reasonably.
Any new policies will encounter the problem of implementation in practice. There are many details that need to be paid attention to for the only child elderly care leave. After a period of implementation and evaluation, it is expected that national legislation or amendments to relevant laws should be made in due time. The only child elderly care leave can then be confirmed and secured by basic laws as a statutory leave, and employees can take care of their parents when they are needed.