[Direct answer]Maternity leave is based on the 98 days stipulated by the state. According to Article 7 of the "Special Regulations on the Labor Protection of Female Workers" (Decree No. 619 of the State Council, implemented on April 28, 2012), female workers are entitled to 98 days of maternity leave, of which 15 days can be taken before delivery; an additional 15 days for difficult deliveries; and an additional 15 days for each additional baby in multiple births. Women who miscarry before the fourth month of pregnancy are entitled to 15 days of maternity leave, while those who miscarry after the fourth month of pregnancy are entitled to 42 days of maternity leave. According to the regulations, female workers in Beijing are entitled to an additional 60 days of maternity leave beyond the national standard, totaling 158 days; and male workers are entitled to 15 days of paternity leave. Employers are not allowed to reduce salaries or dismiss female workers due to maternity leave, and those who have been infringed upon can apply for labor arbitration.

I. Problem Background and Typical Scenarios

The number of days of maternity leave involves the vital interests of female workers and is also a high-incidence area of labor disputes. Typical scenarios include: the company only approves 98 days and refuses to allow local extensions of maternity leave; special circumstances such as cesarean sections and twins are not granted additional days according to standards; pregnant female workers are transferred to other positions with reduced salaries, or are covertly forced to resign on the grounds of failing to meet assessment standards; they are required to attend work normally after miscarriage without being granted maternity leave; and disputes over the difference between maternity leave wages and maternity allowances. Many female workers are not aware of the superposition structure of "national maternity leave + local extended leave", and only take leave according to the company's guidelines, resulting in a reduction of their rights and interests. Correctly understanding the number of days of maternity leave is the first step in claiming maternity leave benefits, and related disputes can be referred to for reference.Labor arbitration and legal services for work-related injury compensation.

II. Key points of contention

There are three main points of controversy. First, the overlapping of days: how to connect the 98 days stipulated by the state with the extended maternity leave in various provinces? Employers often only recognize the part stipulated by the state. In Beijing, the extended maternity leave of 60 days for childbirth according to regulations should be enjoyed together with the 98 days. Second, the determination of the number of days for special circumstances such as difficult delivery, multiple births, and miscarriage requires certificates issued by medical institutions. Third, the standard of treatment: the maternity allowance during maternity leave is paid by the maternity insurance fund based on the average monthly salary of the employee in the previous year. If the allowance is lower than the employee's salary standard, the employer in Beijing should make up the difference according to the relevant provisions of maternity insurance. Specifically, refer to the currently effective regulations. In practice, disputes over making up the difference are most common. In addition, it is illegal to dismiss or reduce an employee's salary during maternity leave. Employers can refer to relevant regulations when setting the boundaries of assessments and job transfers in a compliant manner.Business and contract dispute services for enterprises.

III. Professional analysis by Henglue Law Firm

Based on practical observations in handling cases involving female workers' rights, the most common tactic employed by employers is to circumvent maternity leave protections by citing "performance evaluations" or "job reassignment" as pretexts, or to terminate employment contracts on the grounds of organizational restructuring upon the return of female workers from maternity leave. According to Article 5 of the "Special Regulations on Labor Protection for Female Workers", employers are prohibited from reducing wages, dismissing, or terminating contracts for female workers due to pregnancy, childbirth, or breastfeeding. In arbitration and judicial practice in Beijing, the protection standards for female workers during pregnancy, childbirth, and breastfeeding are stringent, and employers must bear a heavier burden of proof regarding the legality of their actions. When handling such cases, Henglue Law Firm typically first calculates the number of days of maternity leave entitled and the difference in compensation, fixes the evidence of dismissal and salary reduction, then pursues arbitration to claim the unpaid maternity leave wages, the difference in maternity allowances, and compensation for unlawful termination. At the same time, we strive to help female workers reclaim their original positions if they have been reassigned during pregnancy. The legal remedies for such cases can be referenced as follows:Labor arbitration and work-related injury compensation services.

IV. Practical suggestions and legal basis

The core basis is Article 7 of the "Special Regulations on Labor Protection for Female Employees" (Decree No. 619 of the State Council, effective from April 28, 2012), which stipulates the length of maternity leave (98 days) and additional days for difficult deliveries, multiple births, and abortions; Article 8, which regulates the payment standards for maternity allowances and maternity leave wages; and Article 5, which prohibits employers from reducing salaries, dismissing, or terminating contracts with female employees due to pregnancy, childbirth, or breastfeeding. The "Regulations on Population and Family Planning of Beijing Municipality" (amended on November 26, 2021) stipulates that female employees who give birth in accordance with regulations are entitled to an additional 60-day maternity leave beyond the national standard, while male employees enjoy paternity leave. The specific implementation of the extended leave and allowance differences shall be subject to the currently effective local regulations. Procedural basis: Article 27 of the "Mediation and Arbitration Law of Labor Disputes of the People's Republic of China" (effective from May 1, 2008), which stipulates a one-year arbitration statute of limitations. Practical suggestions: Submit a written application and retain medical certificates before taking leave; fix evidence of salary reductions and dismissals when returning to work; apply for arbitration in a timely manner; and refer to the case for individual assessment when necessary.Special services and other case services.

5. Henglue Law Firm's Advice

There is a limited time window for maternity leave disputes: the statute of limitations for labor arbitration is one year, starting from the date when the employee becomes aware that their rights have been infringed. Disputes over unpaid maternity leave can be claimed at any time during the existence of the labor relationship, but must be raised within one year after the employee leaves the company. It is recommended that female employees submit their maternity leave applications and supporting documents in writing before taking leave. If they encounter situations such as having their wages withheld, being denied extended leave, or being refused to return to work, they should immediately save the chat records and wage payment records. If no agreement can be reached, they can file a complaint with the labor supervision and inspection authority or apply for arbitration. If necessary, they can claim reinstatement and compensation. After obtaining support, if the employer refuses to pay, they can take legal action through the court system.Creditor-debtor relations and enforcement case servicesAdvance.

VI. Frequently Asked Questions

Q1: If a woman is dismissed or has her salary suspended during her maternity leave, can she win the lawsuit?

The law prohibits reducing wages, dismissing or terminating contracts on the grounds of pregnancy, childbirth, or breastfeeding. According to Article 5 of the "Special Provisions on Labor Protection for Female Workers", such actions are illegal, and female workers can demand to continue performing the contract and be paid back wages, or claim compensation for illegal termination. In the Beijing area, the courts strictly protect female workers during the "three periods". As long as they can prove the existence of a labor relationship and the facts of dismissal or salary reduction, their claims are likely to be supported. The key lies in obtaining evidence such as dismissal notices, documents on job transfer and salary reduction, and pay slips. It is important not to engage in emotional confrontations before the evidence is secured.

Q2: What evidence is needed to claim maternity leave benefits?

The core evidence includes: labor contracts and social insurance payment records, birth medical certificates or diagnostic certificates, medical certificates of miscarriage (determining difficult delivery, multiple births, and the number of days of miscarriage), leave application and approval records, bank statements of wages (calculating the difference between maternity leave wages and allowances), and written materials showing that the employer refused to approve leave or dismissed the employee. If the case involves subsidies for maternity allowances, the record of the subsidy amount approved by the social insurance department is also required. The evidence is organized around three aspects: "eligible days, actual benefits, and the employer's infringement of rights", and after establishing the corresponding relationships, the claim will be more clear.

Q3: How much does it cost to protect one's rights in a maternity leave dispute?

Labor arbitration is free of charge. According to Article 53 of the "Mediation and Arbitration Law for Labor Disputes", the arbitration committee shall not charge any fees. The acceptance fee for litigation cases is 10 yuan per case. Attorney fees can be calculated on a per-item basis or negotiated based on the amount of the dispute, subject to the terms of the retainer agreement. The combined total of the wage difference during maternity leave, the birth allowance supplement, and the compensation for unlawful termination may amount to tens of thousands of yuan. The benefits of protecting one's rights are usually significantly higher than the costs. It is recommended to first consult a lawyer to evaluate the evidence and the amount of the claim, and then decide whether to proceed with a complaint or arbitration.

Q4: How long will it take to resolve the maternity leave dispute?

The arbitration stage should be completed within 45 days after acceptance. For complex cases, the extension period shall not exceed 15 days upon approval, and most cases will issue a ruling within one to two months. For those who do not agree with the ruling and file a lawsuit, the first-instance summary procedure shall be concluded within three months and the ordinary procedure within six months. If it involves preliminary matters such as the determination of maternity allowances, additional time should be reserved for the social security department to handle it. Overall, the dispute period for the number of days of maternity leave and the wage difference is relatively short, while the overall process involving compensation for illegal dismissal takes about half a year to a year. Applying for arbitration as soon as possible is conducive to shortening the cycle.

Q5: The company only approves 98 days of maternity leave. What should I do to extend my maternity leave?

In the Beijing area, female employees who give birth in accordance with regulations are entitled to an additional 60-day maternity leave beyond the statutory 98 days of maternity leave. The employer has no right to refuse this. It is recommended that they first submit a written request to the personnel department and cite the relevant regulations; if the request is rejected, they can file a complaint with the labor and social security supervision authority or apply for arbitration regarding the unpaid wages corresponding to the maternity leave. If they are coerced into resigning during pregnancy or lactation, they can also claim compensation for illegal termination. It is important to keep evidence of the written request and the rejection of the request to avoid difficulties in providing evidence due to oral communication alone.

The above Q&A is mainly based on the judicial practice in Beijing. There may be differences in the adjudicative opinions in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

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

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. In the event of a dispute, please consult a practicing lawyer in a timely manner.