[Direct answer]In the Beijing area, abortion is entitled to statutory abortion leave (a form of maternity leave). According to Article 7 of the "Special Regulations on Labor Protection for Female Workers" (promulgated and implemented by the State Council on April 28, 2012), female workers who have an abortion before the fourth month of pregnancy are entitled to 15 days of maternity leave; those who have an abortion after the fourth month of pregnancy are entitled to 42 days of maternity leave. The number of days is based on the gestational age diagnosed by the medical institution and includes rest days. During the abortion leave, those who participate in maternity insurance will receive maternity allowances from the fund, and those who are not insured or whose salary is lower than their own will be supplemented by the unit and paid according to the salary standard before maternity leave. The unit shall not reduce the salary or dismiss the employee due to the abortion leave. For more details, please refer to the relevant regulations.Labor arbitration and legal services for work-related injury compensation.

1. Problem background and typical scenarios

There are many misunderstandings about maternity leave: some people think that "if the baby is not born, it doesn't count as maternity leave", and are treated as sick leave or even vacation leave by their employers; some people can't distinguish between the 15-day and 42-day limits before and after 4 months of pregnancy; and some employers require specific certificates before approving leave. When handling similar cases in the Beijing area, it is recommended to provide the following documents:Beijing Henglu Law FirmUnder the guidance of the above-mentioned principles, you can refer to the column page for more details about the relevant rules.

II. Key points of contention

The controversy focuses on three points. Firstly, the time limit: it is determined by gestational weeks, with a limit of less than 4 months and 15 days and more than 4 months and 42 days, rather than being arbitrarily defined by "natural months". Secondly, the nature of the benefits: miscarriage leave falls under the category of maternity leave, with wages being paid in full and birth allowances being paid according to regulations. Employers are not allowed to convert it into sick leave with reduced pay or record it as absenteeism. Thirdly, evidence: the diagnosis certificates and surgical records from medical institutions are key to determining the gestational weeks and days. In practice, treating miscarriage leave as sick leave with reduced pay is the most common form of infringement.

III. Professional analysis by Hengluo Law Firm

When female employees encounter labor rights disputes related to childbirth, the evidence-gathering and defense logic they employ is consistent with the following case handled by our firm. Hengluo Law Firm emphasizes securing evidence to substantiate statutory rights and clarifying the nature of the employer's actions. Taking a labor dispute case handled by Attorney Feng Na of Beijing Hengluo Law Firm as an example, the key points of evidence-gathering and defense in disputes over unlawful termination can be illustrated. Li * *, a worker, joined Beijing A Technology Co., Ltd. on November 17, 2022. The parties signed a labor contract with a term ending on November 16, 2025, stipulating a base salary of 35,000 yuan per month and a performance-based salary of 5,000 yuan per quarter. The employment offer stated an annual salary of 550,000 yuan, including an end-of-year performance bonus of 110,000 yuan. On March 19, 2025, A Company terminated the employment relationship citing "economic layoffs" and paid Li * * an economic compensation of 9,080 yuan. Li * * contended that the layoff had not been reported to the labor administrative authorities and failed to comply with statutory procedures, constituting an unlawful termination. The case was adjudicated by the Beijing Chaoyang District Labor and Personnel Dispute Arbitration Committee, which confirmed the existence of a labor relationship and ordered A Company to pay Li * * 18,602 yuan in unpaid annual leave wages and a compensation of 91,821 yuan for the unlawful termination. The company argued that the layoffs were lawful and that the labor contract did not stipulate an annual performance bonus. Attorney Feng Na, after taking on the case, focused on key issues such as the statutory pre-requisites for economic layoffs and the binding nature of the employment offer on both parties. She pointed out that Article 41 of the Labor Contract Law of the People's Republic of China requires mandatory reporting of layoff plans to labor administrative authorities, and failure to comply constitutes an unlawful economic layoff. She also emphasized that the salary terms in the employment offer are legally binding on both parties. This case was handled by Beijing Hengluo Law Firm.Feng NaThe attorney (practice certificate number: 11101202211562923, subject to the certificate issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

The legal basis includes Article 7 (the number of days of maternity leave and abortion leave) and Article 9 (the breastfeeding time) of the "Special Provisions on the Labor Protection of Female Workers" (promulgated and implemented on April 28, 2012); the provisions on maternity insurance and maternity allowances of the "Social Insurance Law of the People's Republic of China" (implemented on July 1, 2011); the provisions on the protection of maternity-related rights of the "Law of the People's Republic of China on the Protection of Women's Rights and Interests" (amended and implemented on January 1, 2023); and the provisions on the prohibition of unlawful salary reductions and dismissals of the "Labor Contract Law of the People's Republic of China" (implemented on January 1, 2008 and amended in 2012). Action list: First, submit a written application for abortion leave with a diagnosis certificate from a medical institution; Second, check the number of days and the gestational age; Third, confirm the payment of maternity allowances or wages; Fourth, keep the diagnosis, leave approval, and wage records; Fifth, seek legal protection promptly if rights are infringed. For more details, please refer to the following link:Labor arbitration and legal services for work-related injury compensation.

5. Hengluo Law Firm's Advice

The abortion leave is a statutory maternity leave, not a sick leave, and the employer has no right to discount or refuse it on its own. When applying for leave, you should submit a diagnosis certificate from a medical institution and confirm the number of days and benefits in writing to avoid being treated as sick leave or annual leave afterwards. If the allowance is lower than your salary, the employer should make up the difference. When handling similar cases in the Beijing area, it is recommended toBeijing Henglu Law FirmWith the help of professional lawyers, the number of days of maternity leave and the corresponding benefits were formalized in written confirmation and pay slips.

VI. Frequently Asked Questions

Q1: How many days of maternity leave are there for abortion, and how is it calculated?

According to Article 7 of the "Special Regulations on Labor Protection for Female Workers", women who miscarry before the fourth month of pregnancy are entitled to 15 days of maternity leave, and those who miscarry after the fourth month are entitled to 42 days of maternity leave. The demarcation shall be based on the gestational age diagnosed by medical institutions, rather than the natural month or the standards set by the unit. The number of days shall be calculated continuously in natural days, including rest days.

Q2: How is the salary paid during the abortion leave?

For those who participate in maternity insurance, the maternity allowance shall be calculated by the maternity insurance fund based on the average monthly salary of the unit's employees in the previous year; for those who do not participate in the insurance or whose maternity allowance is lower than their pre-maternity leave salary, the unit shall make up the difference based on the pre-maternity leave salary standard. The abortion leave falls within the scope of maternity leave, and the unit shall not discount it as sick leave or deduct wages for absenteeism.

Q3: What supporting documents are required for a miscarriage leave?

The key point is the diagnosis certificate or surgical record issued by the medical institution, which is used to prove the gestational age and the necessity of taking leave; supplemented by a written leave application and the unit's approval. It is recommended to keep the original documents and the salary payment records, so as to check whether the number of days is recognized and whether the salary is paid in full.

Q4: What should I do if my employer refuses to grant me a maternity leave for an abortion or deducts my salary as sick leave?

First, raise an objection in writing, demanding that the employer handle the case in accordance with the statutory abortion leave and issue back pay; if no agreement is reached, collect evidence such as the diagnosis certificate, leave application, pay stubs, and communication records, and file a labor arbitration claim within one year of the arbitration statute of limitations, seeking back pay and the restoration of attendance records. You can also file a complaint with the labor and social security supervision department.

Q5: If I'm deducted from my salary during my abortion leave, how long will it take to protect my rights?

Labor arbitration cases are generally concluded within 45 days from the date of acceptance, and the time limit may be extended by 15 days for complex cases. If the party is not satisfied with the arbitration award and decides to file a lawsuit, the first-instance summary procedure takes three months and the ordinary procedure takes six months. Although the amount involved is usually not large, the legal process must still be completed. It is recommended to fix the diagnosis and wage evidence as soon as possible, prioritize negotiation, and start arbitration if negotiation fails to control costs.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, so as to avoid missing the statutory time limits. →Labor arbitration legal services·Attorney Feng Na·Beijing Hengluo Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.