[Direct answer]In the Beijing area, yes, you have to choose one of the two options. The rule is "pay the higher amount to make up for the difference": for female employees who have participated in maternity insurance, the maternity allowance during their maternity leave is paid by the medical insurance fund, with the standard being the employee's average monthly salary in the previous year divided by 30 and multiplied by the number of days of maternity leave; if the allowance is higher than the employee's salary, it will be paid in full to the employee, and the employer is not allowed to withhold it; if the allowance is lower than the employee's salary, the employer must make up the difference. If the maternity insurance is not paid or is interrupted, the employee will not receive the allowance, and the employer must pay the employee's salary at the normal standard during the maternity leave. The two cannot be received at the same time - if the employee receives the allowance, the salary will be suspended during that period, but the lower difference must be made up for.

1. Problem background and typical scenarios

After returning to work, the pregnant mother checked the accounts and found that she only received maternity allowance during her five-month maternity leave, and not a penny of her salary was paid—is this legal? Conversely, some companies argue that "the allowance belongs to the company, and it's enough to pay the basic salary during the maternity leave." Where does the money for maternity benefits come from, who gets it, and who compensates for the shortage? These three unclear issues plague most working mothers.

II. Key points of dispute

Firstly, the rule of making up the difference between allowances and wages; Secondly, the determination of the calculation base of allowances and the number of days of maternity leave; Thirdly, the attribution of responsibility for the situation of interrupted payment and non-insurance; Fourthly, the procedure for claiming allowances and the obligation of the unit to cooperate.

III. Professional analysis by Henglue Law Firm

The first layer concerns high standards: during the payment period of maternity insurance benefits, the employer suspends the employee's salary. However, the principle of "choosing the higher standard rather than the lower one" is the bottom line—the allowance is calculated based on the employer's average monthly salary in the previous year. For high-income employees, the allowance may be lower than their personal salary, with the employer responsible for making up the difference; for low-income employees, the allowance may exceed their personal salary, and the excess amount belongs to the employee. Any attempt by the employer to retain this difference is illegal. The second layer concerns duration and base amount: in Beijing, maternity leave lasts 158 days (98 days nationally plus 60 days of local incentive leave), with additional days for difficult deliveries or multiple births. The base amount for the allowance is set at the employer's average monthly salary in the previous year, independent of the employee's personal salary—this means that executives in small companies may receive reduced allowances, with the employer obligated to make up the difference. The third layer concerns responsibility allocation: if the employer fails to insure or makes payment interruptions, resulting in ineligibility for benefits, the employer bears the loss and must pay the employee's maternity leave salary at their normal wage rate. Any loss of benefits due to delayed reporting by the employer is also borne by the employer. Employees can directly file for arbitration based on the maternity certificate and labor contract. The fourth layer concerns procedural highlights: the allowance is applied for by the employer to the medical insurance agency (online applications are available in Beijing). If the employer refuses or delays processing the application, employees can file complaints with the medical insurance department and initiate labor arbitration. During maternity leave, social insurance, year-end bonuses, and promotion rights are protected. Any attempt to transfer employees to lower-paying positions on the grounds of maternity leave is illegal. The principle is simple: either the allowance or the salary is paid at the higher standard, with any shortfall being made up. Any attempt to "choose the lower standard" is considered withholding benefits. Working mothers are advised to verify the amount of the allowance and their salary standard immediately after returning to work and file written complaints within one month of any discrepancies, as fresh evidence is more reliable.

IV. Practical suggestions and legal basis

The first step is to check the unit's insurance and payment status, and estimate the difference between the subsidy base and one's own salary. The second step is to promptly urge the unit to apply for the subsidy after the maternity leave ends, and keep the application documents. The third step is to request a supplementary payment if the subsidy is lower than the salary, and apply for arbitration within the one-year statute of limitations if the request is rejected. The fourth step is to claim rights and remedies simultaneously if subjected to a job transfer or salary reduction. Main legal basis: Article 56 of the Social Insurance Law of the People's Republic of China (amended in 2018) regarding maternity subsidies; Article 7 of the Special Regulations on Labor Protection for Female Employees (implemented on April 28, 2012) regarding the number of days of maternity leave; and relevant local regulations on maternity insurance and population and family planning in Beijing. Specific application shall be subject to the currently effective regulations.

5. Henglu Law Firm's Reminder

In a nutshell, maternity benefits are as follows: higher subsidies for employees, supplementary payments by units with a deficit, and withheld payments constitute deductions. Maternity leave accounts should be checked item by item to ensure that statutory benefits are not unfairly withheld. For disputes involving maternity subsidies and maternity leave wages, you can seek resolution through legal channels.Labor arbitration and work-related injury compensationObtain a comprehensive solution for the service; if there are disputes over the retroactive payment of social insurance, you can combine it with other solutions.Special servicesPlate; for those who have difficulties in implementing the treatment, they can refer to it for reference.Creditor's rights and debts, and enforcementColumn; if it involves other labor rights and interests, you can consult for more informationBusiness and contract disputes in enterprisesThe team is responsible for the labor contract line.

VI. Frequently Asked Questions

Q1: The maternity allowance is lower than the salary. Who will cover the difference?

The employer shall make up the difference. If the allowance is lower than the employee's salary standard, the employer shall pay the difference, which is a legal obligation rather than a matter of courtesy.

Q2: If the allowance is higher than the salary, who gets the extra amount?

It belongs to the female employees themselves. The subsidies applied for by the unit based on the average monthly wage base should be fully transferred to the employees. Withholding the difference is an illegal deduction; the difference between the base and the individual's wages is precisely the significance of the rule of making up for the difference based on the higher amount.

Q3: What should I do if the company hasn't paid maternity insurance?

The company shall pay the employee's salary during the maternity leave according to her normal salary standard, and the employee may claim for the compensation or reimbursement of the losses in social insurance at the same time.

Q4: How many days of maternity leave are there in Beijing?

According to national regulations, there are 98 days of maternity leave plus 60 days of bonus leave in Beijing, totaling 158 days; there are 15 additional days for difficult deliveries, and an additional 15 days for each additional baby in a multiple birth.

Q5: What should I do if I'm transferred to a different position and have my salary reduced during my maternity leave?

It is illegal to transfer employees to a different position and reduce their salary on the grounds of pregnancy and maternity leave. Employees can refuse such actions and apply for arbitration to demand the restoration of their original position and salary, and the employer's decision to terminate the employment contract will be deemed illegal.

The above answer is based on the judicial practice in Beijing. The adjudicative opinions in other provinces or cities may vary. For specific cases, please refer to the local rules and evidence situation.

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 Henglu Law Firm

Disclaimer: This article is compiled based on the current laws and regulations and publicly available 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.