Women's Legal Maternity Protections (2/2)

In the first part of this series, we delved into the protections for female employees’ rights during and before pregnancy. Now, let’s shift our focus to one of the most critical topics: the types of leave available for pregnancy and childbirth.

Under Korean law, specifically Article 74 of the Labor Standards Act (LSA), pregnant female employees are entitled to 90 days of maternity leave (or 120 days if expecting multiples). Importantly, at least 45 days (60 in the case of multiple births) must be taken after childbirth, ensuring time for recovery. However, women have the flexibility to use up to 45 days of this leave prior to the birth. The cost of maternity leave is shared by both the employer and the employment insurance fund.

Korean law also extends maternity leave to employees who suffer from stillbirth or miscarriage, though amount of leave varies depending on what stage the pregnancy ended. After 28 weeks of pregnancy, full maternity leave is allowed for miscarriages.

It’s important to note that under Korean law, female employees must take at least 45 days of leave after giving birth. Employers who violate this regulation can face hefty fines of up to 20 million KRW or even a prison sentence of up to 2 years, according to Article 110 of the LSA. Once an employee is ready to return, they are legally entitled to their previous position or a comparable one with equal pay.

But what about employees who seem to be absent from work for longer than the 90-day maternity leave? This is likely due to a provision known as "Temporary Retirement for Childcare" (often referred to as Child Care Leave), protected under Article 19 of the Equal Employment Opportunity Act (EEO). This law allows both mothers and fathers of children that under 8 or in the second grade or lower of elementary school to take up to 12 months off work. During this time, employers are prohibited from taking negative actions against them and must ensure they return to the same or an equivalent position with the same pay.

The intent behind these laws is clear: to protect the health and well-being of female employees and aid their recovery post-childbirth.

However, it’s worth noting that adoptive mothers are not eligible for maternity leave. That said, both adoptive parents are eligible for Child Care Leave, allowing them to take time off and bond with their adopted child.

Maternity protections are quite serious in Korean law, particularly now as childbirth rates are at a critically low level. For any questions you might have about your company’s situation or applicability of maternity-related regulations, contact the experts at InterLEX.