[Direct answer]During the maternity leave, both the labor relationship and the social insurance relationship remain in effect, and the five social insurances should be paid as usual: the employer's contribution portion is still borne by the employing unit, and the employee's contribution portion (such as about 8% for pension insurance and 2% for medical insurance, with slight differences in the proportion across different regions) is deducted and paid by the employer from the maternity leave salary or maternity allowance, without requiring the employee to make advance payments. For those who have participated in maternity insurance, the maternity allowance will be calculated by the maternity insurance fund during the maternity leave, and the allowance will not be enjoyed concurrently with the maternity leave salary, with the higher amount taking precedence. For those who have not participated in maternity insurance, the employing unit shall pay according to the employee's pre-maternity leave salary standard in accordance with the "Special Regulations on Labor Protection for Female Employees". Stopping the payment of social insurance on the grounds of taking maternity leave and making the employee bear the full cost are all illegal. Workers can file complaints or apply for arbitration, and can first go through the labor dispute mediation process.Labor arbitration and legal services for work-related injury compensationTo understand the path to protecting your rights, or to visitBeijing Henglu Law Firm.

I. Problem Background and Typical Scenarios

During the maternity leave, the most common questions among new mothers are "how to receive the maternity allowance and how to pay social insurance". Typical situations include: after the employer stops paying salaries, they require employees to pay both the employer's and employees' portions of social insurance; the maternity allowance has not arrived yet, and the employer refuses to pay social insurance on the grounds of "not receiving the money"; the allowance is lower than the employee's salary, and the employer refuses to make up the difference; what to do with social insurance when working flexibly or being unemployed during pregnancy; and when the employer pays maternity insurance at the minimum base rate, resulting in a significant reduction in the allowance. Behind these problems is a confusion about the relationship between the maternity allowance, maternity leave wages, and social insurance deductions. Improper handling not only affects the amount of benefits, but also may lead to a break in social insurance payments, which in turn affects long-term qualifications such as housing purchases, household registration, and medical insurance reimbursements.

II. Key points of dispute

  • Where is the personal portion deducted from? The maternity allowance is essentially a substitute for wages during maternity leave. It is legal for the employer to deduct the personal contribution portion from the allowance or the wages due to the employee; however, it is illegal for the employer to require the employee to bear the employer's contribution portion or to deduct an amount exceeding the statutory percentage.
  • The higher of the maternity allowance and the salary shall be paid to make up for the difference: the maternity allowance shall be calculated according to the average monthly salary of the employees of the employing unit in the previous year. If it is lower than the employee's pre-maternity leave salary standard, most regions require the unit to make up for the difference; for those who have not participated in maternity insurance, the unit shall pay according to the pre-maternity leave salary standard.
  • The responsibilities for suspending and terminating social insurance payments: Maternity leave is not a period of social insurance suspension. If the employer suspends social insurance payments, it is not only illegal, but also may result in losses due to interrupted payments. Employees can request to make up for the payments and claim corresponding compensation.

III. Professional analysis by Henglue Law Firm

From the perspective of regulations, maternity allowance is a substitute payment from the social security fund for wages during maternity leave: Article 56 of the Social Insurance Law of the People's Republic of China stipulates that female employees who give birth shall enjoy maternity leave and receive maternity allowance in accordance with national regulations. The allowance shall be calculated based on the average monthly wage of the employees in the employing unit where the employee works in the previous year. Therefore, during maternity leave, the unit usually does not pay wages separately, but pays allowances and supplements the difference with the higher amount. The base for deducting personal social insurance is the allowance or the wages payable. After deduction, the actual treatment shall not violate the bottom line of "not reducing wages due to childbirth". If the unit fails to pay maternity insurance in accordance with the law, the unit shall directly pay maternity leave wages at the standard of wages before maternity leave, and the maternity medical expenses shall also be borne by the unit. The risk of not being insured should not be transferred to employees. For flexible employed women, most regions have not included flexible employees in maternity insurance in the past. In recent years, some provinces and cities have gradually opened up or covered maternity expenses with medical insurance benefits. Specifically, please refer to local regulations. Enterprises should simultaneously improve the internal processes of maternity leave benefits and social insurance deduction, and, if necessary, combine them with other measures.Business and contract dispute services for enterprisesCarry out an assessment of employment compliance.

IV. Practical suggestions and legal basis

Legal basis: Article 53 of the Social Insurance Law of the People's Republic of China (effective July 1, 2011) stipulates that employees shall participate in maternity insurance, with the employer paying the premiums and the employees not required to make contributions; Article 54 stipulates that maternity insurance benefits include maternity medical expenses and maternity allowances; Article 56 stipulates the circumstances and calculation methods for receiving maternity allowances; Article 5 of the Special Provisions on Labor Protection for Female Employees (promulgated and implemented on April 28, 2012) requires that employers shall not reduce the wages of female employees, dismiss them, or terminate their contracts due to pregnancy, childbirth, or breastfeeding; Article 7 stipulates that female employees shall enjoy 98 days of maternity leave (with an additional 15 days for difficult deliveries and an additional 15 days for each additional baby); Article 8 clarifies the payer of maternity allowances and stipulates that in the absence of insurance coverage, the employer shall pay according to the pre-maternity leave wage standard; Article 27 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China (effective May 1, 2008) stipulates a one-year arbitration statute of limitations. Practical suggestions: - Confirm with HR in writing before maternity leave regarding the application for allowances, wage supplementation, and social insurance payment methods; - Check the social insurance payment records and allowance receipt monthly; - If payment is suspended or insufficient, first send a written reminder, then file a complaint with the social insurance supervision department and apply for arbitration; - Keep evidence such as labor contracts, pay slips, and birth certificates. For issues related to the enterprise's employment system design, consult professionals as needed.Intellectual property protection and corporate legal servicesTeam.

5. Henglue Law Firm's Reminder

Most disputes over maternity leave benefits involve relatively small amounts, but they have a significant impact on families and careers, and are often intertwined with issues such as dismissal during the breastfeeding period and transferring or reducing salaries. Henglu Law Firm advises focusing on three key points: First, prioritize higher benefits. If there is a choice between allowances and wages, opt for the higher one, and ensure that any difference in payment is compensated. Do not accept verbal arrangements that require employees to receive payments based on the minimum wage and pay for their own social insurance. Second, collect evidence first. Keep records of three key figures: wage standards, contribution bases, and allowance amounts. Written confirmation before maternity leave is more effective than disputes after the fact. Third, be aware of the statute of limitations. Claims for wage differences after leaving the job must be filed within one year. If the employer terminates the labor contract on the grounds of maternity leave, this constitutes an illegal termination, and the employee can also claim compensation. For specific solutions, please consult us for further assistance.Special services and other case servicesTeam case evaluation.

Q1: Can I receive both the maternity allowance and the maternity leave salary at the same time?

It cannot be enjoyed repeatedly. Maternity allowance is essentially the maternity insurance fund paying the employer's salary during maternity leave. For those who have joined maternity insurance, the fund will calculate and pay the allowance during maternity leave, and the employer will no longer pay the salary separately; if the allowance is lower than the employee's pre-maternity leave salary standard, the employer will make up the difference, which is commonly known as the "higher standard" principle. For those who have not joined maternity insurance, there is no fund allowance, and the employer will pay maternity leave wages according to the pre-maternity leave salary standard. Note that some regions have separate provisions for incentive leave beyond the statutory 98 days of maternity leave. The subject and standard of payment for incentive leave during this period shall be subject to the local population and family planning regulations and implementation guidelines.

Q2: The company said that all social insurance costs during my maternity leave would be borne by me personally. Is that legal?

This is illegal. According to the law, employees should participate in social insurance, with the employer responsible for the employer's contribution portion and the employee responsible for the personal contribution portion, which is deducted and paid on behalf of the employee by the employer from their salary; among which, the maternity insurance premiums are entirely paid by the employer, with no contribution required from the employee (Article 53 of the Social Insurance Law of the People's Republic of China). During the maternity leave, the employment relationship remains in effect. If the employer requires the employee to bear all the social insurance costs on the grounds that the employee does not go to work, this constitutes a transfer of statutory obligations. The employee may file a complaint with the social insurance supervision or labor inspection authorities to request rectification and back payments, and may also apply for arbitration to claim compensation for losses. Even if the personal contribution portion is deducted, it should be limited to the statutory proportion and deducted from the allowance or the salary to be paid. After deduction, the remaining amount shall not be lower than the employee's entitlement.

Q3: The maternity allowance is lower than my salary. Can I get back the difference?

Generally, this is possible. The maternity allowance is calculated based on the average monthly salary of the employee in the previous year. If it is significantly lower than the employee's salary before maternity leave, most regions require the employer to make up the difference according to the "whichever is higher" principle. If the employer fails to pay social insurance contributions, resulting in a low base amount and reduced allowances, the responsibility lies with the employer, and the employee should not bear the losses themselves. When claiming the difference, the employee should prepare the labor contract, the salary records of the previous 12 months before maternity leave, and the records of maternity allowance payments. First, negotiate with the employer in writing. If no agreement is reached, apply for arbitration to the labor dispute arbitration institution. It should be noted that there are differences in the standards for making up the difference in various regions. Some regions have accounting rules for the part of the salary that exceeds the allowance. It is recommended to consult the local handling agencies or lawyers before determining the amount of the claim.

Q4: The company didn't pay for maternity insurance. Who will pay me during my maternity leave?

It shall be borne by the company. According to Article 8 of the "Special Regulations on Labor Protection for Female Employees", for those who have not participated in maternity insurance, the maternity allowance during the maternity leave of female employees shall be paid by the employing units at the standard of the female employees' wages before the maternity leave, and the maternity medical expenses shall also be borne by the employing units. That is to say, if the unit does not participate in the insurance, it does not mean that the female employees do not have benefits, but the obligation to pay is completely transferred to the unit. In addition, it is illegal to fail to pay social insurance in accordance with the law. Employees can request to make up for the payments; if the unit lowers the maternity leave benefits and delays the payment on the grounds of not participating in the insurance, they can file a complaint with the labor supervision department and apply for arbitration. It is necessary to keep the payroll records, attendance records, and maternity leave approval records as evidence.

Q5: Is it still possible to claim social insurance and allowances after the end of maternity leave?

Generally, it's still possible to take action, but it should be done as soon as possible. The statute of limitations for applying for arbitration in labor disputes is one year, starting from the date when the employee knows or should have known that his rights have been infringed; disputes arising from arrears in labor remuneration during the existence of the labor relationship are not subject to the one-year statute of limitations. If the labor relationship terminates, the application must be made within one year from the date of termination. The difference between maternity leave wages and allowances is usually treated as labor remuneration. Claims during employment are not subject to the statute of limitations, but after leaving the job, the claim must be made within one year. For the issue of retroactive payment of social insurance, complaints can be filed through the social insurance audit channel. It is recommended to organize pay slips, payment records, and communication records as soon as possible to avoid the dual risks of evidence loss and statute of limitations.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Labor arbitration legal services·Beijing Henglue Law Firm