One child, two children, and three children.

■ Xiao Wei

Affected by factors such as population aging, in October 2015, my country fully implemented a two -child policy, and three -child policy was implemented in May 2021. In order to promote the implementation of the two -child and three -child policies, there have been measures to encourage and ensure the two children and three children. Among them, maternity leave and accompanying leave policies are a very important part.

So, how do female employees' maternity leave and male employees rest? Is two children, three children and one child? Let's look at a case first.

Ms. Song was originally an employee of a company in Beijing. On February 14, 2018, Ms. Song gave birth to a daughter. From February 14, 2018 to May 22, 2018, Ms. Song had a mining leave for 98 days.

On June 1, 2018, a company issued the "Notice of Labor Contract Labor Contract" to Ms. Song, with the content: "Ms. Song: The one -year labor contract signed with you, due to maternity leave (February 14, 2018 to to On May 22, 2018), you have rejected the job without any reasons. After the communication is unsuccessful, from May 23, 2018 to May 31, 2018, 9 days will not be performed without approval. According to the company's " The provisions of the attendance management system: According to absenteeism without approved vacation without authorization, the company has the right to relieve the labor relationship with the workers. Labor contract, please go to the company to go to the company to go through the departure procedures within a week. "

A company advocates that the labor relationship with Ms. Song is legal. The reason is that maternity leave should be 98 days. Female employees who have two children will no longer enjoy the 30 -day holiday of late marriage and late childbirth awards prescribed by the state. Ms. Song should resume work on May 23, 2018. However, it did not go to work from May 23, 2018 to May 31, 2018, and did not submit fake strips to the company to constitute an absenteeism. According to the company's "attendance management system", the company has the right to terminate the labor contract with it.

Ms. Song did not recognize it, saying that she called the 12333 labor human resources consultation phone. The staff told him where to give birth, no matter whether one child or two children, and treat it equally. As long as it is social insurance on Beijing, you can enjoy the 128 -day holiday. ; From May 23, 2018 to May 31, 2018, it is still in the period of maternity leave. There is no need to submit a vacation bar, and it has the right to rest.

Judge

The focus of the dispute between the two parties is: whether the female employee should enjoy maternity leave rewards and whether the labor contract should be legal.

Article 7, paragraph 1, paragraph 1 of the "Special Regulations for Labor Protection of Female Workers" stipulates: "Female employees enjoy 98 days of maternity leave, of which 15 days can be taken in vacation; "Article 18 stipulates that" institutions, enterprise institutions, social organizations, and other organizations of female employees shall be given birth to 30 days in accordance with the prescribed maternity leave in accordance with the regulations. During the vacation of female employees and their spouses, agencies, enterprises, institutions, social groups and other organizations must not reduce their wages, dismiss, lift labor or employment contracts. "

The above provisions do not treat the number of children's children differently. Therefore, the female employees of Beijing companies, whether they have one child or two children, whether they are late to marry and childbearing, as long as they are given fertility according to regulations, they can enjoy fertility award leave 30 30 sky. Similarly, in order to encourage fertility, the relevant policies in other places are the same, and even the policy of two children and three children is better.

Ms. Song has two children, which meets the laws and regulations. She is still in maternity leave from May 23 to May 31, 2018. A company's absenteeism and lack of labor relations on the grounds of Ms. Song's absenteeism during the above period lacks facts and legal basis. It is illegal termination. The compensation for Ms. Song to lift the labor contract illegally in accordance with the law should be paid in accordance with the law.

In addition, during the period of enjoying maternity leave, the man also enjoyed the right to take care of and take care of the woman's rights within a certain period of time, that is, accompanying maternity leave, also called nursing leave.

At the current legal level of labor, there is no clear provisions of the accompanying leave. The accompanying leave as a reward measure for legal fertility couples mainly stipulates in the planning regulations revised in various places. However, the time limit stipulated in various regions is different, the shortest is 7 days, and the longest is 1 month. Most areas are 15 days. Similarly, whether it is one child or two or three children, as long as it is legal, the spouse of female employees can enjoy accompanying leave. Judging from the original intention of the accompanying leave design, the accompanying leave should be applied for and rest by the man during the maternity leave of the female employee. During the period of companionship, it is deemed to be attendance or salary, bonuses, and welfare benefits, and does not affect attendance, assessment and advancement, promotion, salary and so on.

Judge suggestion

Employers shall strengthen the management of maternity leave and maternity leave in accordance with the law. First, the rules and regulations should be formulated in accordance with the law, and the conditions for applying for maternity leave and maternity leave, the duration of the use of maternity leave and maternity leave should be made in accordance with the law. Second, when implementing the relevant system, the relevant provisions of the family planning regulations of the company's location should be closely focused on whether there are any changes in the regulations of the company's place of planning. Third, maternity leave and accompanying leave are considered attendance, and no salary and other salary and other salary and other salary and other salary.

(The author is a senior judge of the four levels of the People's Court of Chaoyang District, Beijing)

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