Lawyer Hu Min stipulates according to Article 18 of the "Population and Family Planning Law": The state stabilizes the current fertility policy, encourages citizens to marry later and have children later, and encourages a couple to have one child; if the conditions stipulated in laws and regulations are met, You can request arrangements for the birth of a second child. Therefore, determining whether the family planning policy is violated depends on whether the following two factors are present: 1. Whether the relationship is between husband and wife. If the child is born out of wedlock, since there is no husband-wife relationship between an unmarried man and woman, the birth out of wedlock will be considered a violation of the family planning policy. But 2. Whether to have only one child or a second child if qualified. Regarding childbirth in my country, anyone who complies with the family planning policy can apply for a family planning certificate. Anyone who does not comply with the family planning policy will not be issued a family planning certificate by the family planning department. To sum up, violation of the family planning policy can be defined as: giving birth without registering marriage or having more than one child without a family planning certificate. Unwed childbirth is a typical violation of the family planning policy, but unwed pregnancy is different from this. If the pregnancy is out of wedlock, since before giving birth, unmarried men and women can obtain a marriage certificate in accordance with the law and form a husband and wife relationship, so the pregnancy out of wedlock does not necessarily violate the family planning policy. Article 62 of the Labor Law stipulates that female employees shall enjoy no less than ninety days of maternity leave after childbirth. Article 8 of the "Labor Protection Regulations for Female Employees" stipulates that female employees' maternity leave is ninety days, including fifteen days of prenatal leave. In case of difficult delivery, the maternity leave will be increased by fifteen days. For multiple births, the maternity leave will be increased by fifteen days for each additional baby. The reason why the law makes such provisions is to ensure that female employees who are pregnant and giving birth have enough time to recover their health. After all, people's right to good health comes first. therefore. Maternity leave itself is not subject to compliance with family planning policies. Maternity leave has nothing to do with the number of births. As long as the employee is pregnant and has given birth, regardless of whether it is in compliance with the family planning policy or in violation of the family planning policy, the unit should unconditionally grant sufficient maternity leave time to female employees to ensure that the female employees can successfully recover their health. . The unit cannot reject a female employee’s application for maternity leave. Article 15 of the "Regulations on Labor Protection of Female Employees" stipulates: "If a female employee violates the relevant national family planning regulations, her labor protection shall be handled in accordance with the relevant national family planning regulations, and these regulations do not apply." Therefore, female employees who violate the family planning policy can While on maternity leave, whether they can enjoy labor protection rights such as maternity medical expenses, maternity leave wages or maternity allowances must be handled in accordance with the country's relevant family planning regulations. Although the "Population and Family Planning Law" does not provide special provisions for the maternity treatment of female employees who violate the family planning policy, Article 24 of the "Population and Family Planning Law" stipulates: The state establishes and improves basic pension insurance and basic medical insurance. , maternity insurance and social welfare and other social security systems to promote family planning. According to this provision, it can be determined that the purpose of establishing maternity insurance is to promote family planning. Therefore, those who violate the family planning policy should not be able to enjoy maternity insurance. A more specific and clear regulation is the “Population and Family Planning Regulations” of various places. Article 51 of the "Anhui Provincial Population and Family Planning Regulations" stipulates that those who give birth in violation of the provisions of these regulations shall be dealt with in accordance with the following provisions in addition to collecting social support fees in accordance with the provisions of Article 48, Paragraph 1, Items 1 and 2. : (1) Employees of state agencies, public institutions, and state-owned enterprises who give birth to their first child without obtaining conjugal relationship in accordance with the law shall be given a demerit and shall not be rated as advanced within 3 years; those who do not comply with the provisions of these regulations and give birth to a second or more children shall be punished with a demerit. Give the sanction of expulsion; (2) Farmers and urban residents with no employer shall not be employed as state workers within 3 years after paying social maintenance fees; (3) Bonuses, benefits, and medical expenses for pregnancy examinations, childbirth, and puerperium will be suspended during maternity leave. Take care of yourself. In practice, there are three views on whether an employer can fire female employees who violate the family planning policy: 1. They can be fired under certain conditions. The "Reply Letter on the Acceptance of Labor Disputes Caused by Employees Violating Family Planning Policies" stipulates: "The labor arbitration committee shall accept disputes caused by employees being dismissed from the enterprise for violating family planning policies.
Because, in the current judicial environment, although the legal provisions are the same, the understanding of the problem and the understanding of the law are different in different places. Due to these differences, the same case may have different handling spirit or rules in different areas. The results are different, so HR must understand whether there is a unified judicial approach to this issue in the region. The pregnancy that violates the family planning policy mentioned here refers to the following two situations: First, a married female employee who is not eligible to have a second child becomes pregnant. It should be said that the pregnancy of a married female employee, no matter how many times she is pregnant, does not violate the family planning policy. Only having a child without obtaining a family planning certificate after pregnancy is truly a violation of the family planning policy. Therefore, if this type of female employee has a miscarriage after pregnancy, according to the "Regulations on Labor Protection of Female Employees": If a female employee has a pregnancy and miscarriage, her employer shall grant her a certain period of maternity leave based on a certificate from the medical department. Therefore, female employees are entitled to a certain period of miscarriage leave. At the same time, female employees should also enjoy maternity insurance benefits. Second, unmarried female employees who became pregnant suffered miscarriages. Although pregnancy before marriage does not necessarily violate the family planning policy, if a pregnant female employee has not received a marriage certificate before the miscarriage, because she does not meet the prerequisites of a husband and wife relationship in the family planning policy, her pregnancy should be considered a violation of the family planning policy. If the pregnancy falls under the maternity policy, the abortion should be handled in accordance with the relevant national family planning regulations, and the provisions of the "Labor Protection Regulations for Female Employees" do not apply. However, from the perspective of protecting the health of female employees, female employees should also enjoy abortion leave as long as they are pregnant and have a miscarriage. Of course, they cannot be reimbursed for related expenses in accordance with the maternity insurance regulations. The unit does not need to recuperate if they need time. Pay wages. Of course, if an unmarried female employee has a miscarriage and the employer is willing to allow the female employee to take sick leave and pay sick leave wages from a humanitarian standpoint, this should be considered as a violation of her rights by the employer, and is still legally recognized. Brief introduction of lawyer Hu Min Hu Min, male, is a lawyer specializing in labor law in Anhui, a patent agent, a labor arbitrator, and a master of law from Anhui University. For many years, he has devoted himself to research on labor disputes and corporate human resources legal risk control, focusing on labor dispute agency, corporate human resources legal risk prevention training, and serving as corporate legal counsel.