Dealing with Maternity Leave as a Migrant Domestic Workereayanadminno2
EAYAN Program Participant
Hong Kong is finally catching up with the International Labour Organization (ILO)’s standard of at least 14 weeks maternity leave. The new legislation has taken effect on 11 December 2020, extending current statutory maternity leave from 10 to 14 weeks. While this definitely is great news for working women in Hong Kong, how does it work out for migrant domestic workers in reality?
Migrant domestic workers, like other working women, are entitled to maternity leave in Hong Kong. For a migrant domestic worker mum, the extra four weeks of maternity leave is not a nice-to-have, but a matter of life and death as she needs to take that time to not just recover from childbirth, but also figure out what to do with her baby and her future. She also has to work out all the nitty-gritty of registering her baby and planning whether to fly her baby home or raise him/her in Hong Kong. Often, a domestic worker mum has to do everything entirely on her own, without any help from her employers or her long-distance family. The extra four weeks of maternity leave will give her more time to plan her motherhood as per her wish. She could even consider flying back to her home country early and give birth there – an option that is previously not possible since most airlines do not allow heavily pregnant women to fly.
Although in theory, domestic workers are entitled to maternity leave (and maternity leave pay – though not at full pay – if they work for the same household for no less than 40 weeks), how many of those who get pregnant do actually get maternity leave? The thing is, when these women do domestic work for a living and are expected to continue residing in their employers’ homes throughout the leave period, it is difficult for them to enjoy their maternity leave fully. Or they do, only if they are lucky enough to have thoughtful employers who do not fire them for a random reason before they even give birth. For domestic worker mums, the biggest concern is usually not about whether they can enjoy maternity leave, but the uncertainty that comes from not knowing if their job will still be there for them when they come back to it. Given that they are isolated from other workers, away from home, and have close physical proximity to their employers, domestic workers are at a weak bargaining position in the face of their employers. This makes it challenging for them to claim their rights if their employers are determined to terminate them.
There are always two sides to every story, though. For employers of migrant domestic workers, the extension of maternity leave might not sound that much of good news. Current policies prohibit workers from living outside of their employers’ homes, regardless of whether they are pregnant or not. That means, in order for employers not to break the law, they have to house the pregnant worker during her maternity leave. Although they are not obligated to pay for the extra four weeks (the government has promised to reimburse employers for the cost of the additional leave), the stress from having a worker that is not working but staying in the home and the time and money they need to spend in finding manpower to cover the worker’s original job duties is insurmountable. All too often employers are left with no choice but to ask their workers to leave, even if they need to risk violating the law.
The extension of maternity leave presents an excellent opportunity for the Hong Kong SAR government to address domestic worker pregnancy discrimination that arises from inadequate laws, poor implementation of existing legislations, and lack of awareness of those laws. The government needs to come to terms with the dilemma domestic worker pregnancy brings to employers and the pregnant workers themselves, especially after the extension of maternity leave, which we will likely see the current dilemma exacerbate. It is essential to ensure domestic workers have the right to maternity leave as a fundamental human right. To achieve this, the government needs to go further in supporting their employers so the workers can truly enjoy their maternity rights without having to worry about being terminated.
 International Labour Organization, “International Labour Standards on Maternity Protection,” ILO, accessed December 6, 2020, https://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/maternity-protection/lang–en/index.htm.
 Labour Department Hong Kong SAR Government, “The Employment (Amendment) Ordinance 2020, Extension of Statutory Maternity Leave from 10 Weeks to 14 Weeks,” HKSAR Government, accessed December 6, 2020, https://www.labour.gov.hk/eng/news/EAO2020.htm.
 Fair Employment Agency, “What are the maternity and paternity entitlements of domestic helpers?” FEA, August 19, 2020, https://www.fairagency.org/answers/what-are-the-maternity-and-paternity-entitlements-of-domestic-helpers/
 Shui-Yin Sharon Yam, “Hong Kong’s Refusal to Scrap the Domestic Worker ‘Live-in Rule’ Perpetuates Racism and Sexism,” Hong Kong Free Press, September 25, 2020, https://hongkongfp.com/2020/09/25/hong-kongs-refusal-to-scrap-the-domestic-worker-live-in-rule-perpetuates-racism-and-sexism/.