Target and period of family care leave
Target
- Anemployer shall allow an employee to take a leave of absence to take care ofhis/her family (hereinafter referred to as “family care leave”) because of adisease, accident, or old age, of his/her grandparent,his/her parent, his/her spouse, his/her child, or his/her spouse’s parent, and his/her children or grandchildren (hereinafterreferred to as “family”) (the main body of Article 22-2(1) of the EqualEmployment Opportunity and Work-Family Balance Assistance Act).
Period of leave
The maximum period of family care leave shall be 90 days per year. The period can be split and used several times (former part of Article 22-2 (4), subparagraph 1 of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
When family care leave is divided and used, one time period must be more than 30 days (latter part of Article 22-2 (4), subparagraph 1 of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
※ Whether the service period is included or not
Q. If I use family care leave, will that leave be excluded from the service period?
A. The family care leave period is included in the service period (the main body of Article 22-2 (6) of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
However, it is excluded from the average wage calculation period under Subparagraph 6 of Article 2 (1) of the Labor Standards Act (proviso to Article 22-2 (6) of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
Sanctions against violations
- Employers who receive an application for familycare leave and do not allow it will be fined up to KRW 5 million (Article 39 (3), subparagraph 7 of the EqualEmployment Opportunity and Work-Family Balance Assistance Act).
Restrictions on family care leave
Reasons for restriction
Family care leave is not allowed in any of the following cases (proviso to Article 22-2 (1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act and Article 16-3 (1) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
In cases where an employee whose work period in the applied place of business is less than 6 months by the day before the scheduled start date of care leave
Where it is necessary to take care of a parent, child, spouse, etc. of a family in need of care, in addition to an employee who has applied for family care leave to take care of his/her parent, his/her spouse, his/her child, or his/her spouse
Where there are descendants of grandparents or ascendants of grandchildren other than employees who have applied for family care leave to take care of grandparents or grandchildren (this excludes cases wherein an employee is required to take care of descendants of grandparents or ascendants of grandchildren because of illness, old age, disability, or underage)
Where the employer has applied for a job opening to an employment security agency and has tried to hire substitute employees for at least 14 days, but failed to hire substitute employees (this excludes cases wherein the head of the employment security agency refuses to hire more than twice without justifiable grounds when introducing a job)
Where an employer proves that an employee’s family care leave causes a significant disruption to the normal business operation
Discussion about an alternative
If the employer does not allow family care leave because of the reasons above, he/she shall notify the relevant employee of the grounds therefore in writing, and try to take any of the following measures (Article 22-2 (3) of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
Time adjustment to start and finish work
Restrictions on extended work
Adjustment of working hours, such as reduction of working hours and flexible operation
Other support measures suitable for the circumstances of the place of business
Application for family care leave
How to apply
An employee who wishes to apply for family care leave shall submit to his/her employer documents (including electronic documents) clarifying the name, birthdate of the family member, the reasons for requiring the care, the scheduled start date of care leave, the scheduled end date (hereinafter referred to as “scheduled end date of care leave”), date of application, and the name of the applicant by no later than 30 days before the scheduled date he/she intended to begin the family care leave (hereinafter referred to as “scheduled start date of care leave”) (Article 22-2 (9) of the Equal Employment Opportunity and Work-Family Balance Assistance Act and Article 16-2 (1) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
If an employee applies for a family care leave after the application period above, the employer must allow the family care leave by designating the start date of the family care leave within 30 days from the date of application (Article 16-2 (2) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
The employer may request the employee who has applied for family care leave to submit documents confirming the need for family care leave, such as the health condition of the family that needs to be taken care of, whether it is possible for someone else to take care of the family other than the applicant, etc. (Article 16-2 (3) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act)
Application for postponement
- The scheduledend date of care leave may be postponed only once, and in this case, theemployee must apply to the employer 30 days before the scheduled end date ofcare leave (Articles 16-6 and 12(2) of the Enforcement Decree of the EqualEmployment Opportunity and Work-Family Balance Assistance Act).
- However, if it is difficult to raise a family because of a spouse’s death, injury,illness, physical or mental disorder, or divorce with a spouse, the employeemust apply no later than 7 days before the originally scheduled end date ofcare leave (Articles 16-6, latter part of Articles 12 (2) and Article 11(2), subparagraph 3 of the EnforcementDecree of the Equal Employment Opportunity and Work-Family Balance AssistanceAct).
Withdrawal of application for family care leave
Withdrawal of application
An employee who has applied for family care leave may withdraw his/her application by not later than 7 days before the scheduled start date of care leave (Article 16-4 (1) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
Invalid application
If a family in need of care dies or a disease is healed before the scheduled start date of care leave after an employee applies for family care leave, such application shall not be deemed to have been filed. In such cases, the employee shall notify the employer of such fact without delay (Article 16-4 (2) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act)
Termination of family care leave
Notification of the reason for termination
If the family member in need of care is dead or is cured from a disease, etc., an employee on family care leave shall notify his or her employer of such fact within seven days from the date of the occurrence of such ground (Article 16-5(1) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
After an employer is notified of the death, etc. of a family member in need of care from an employee on family care leave pursuant to the above, the employer shall designate the start date of work within 30 days from the date of notification and notify the employee thereof (Article 16-5 (2) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
End date of the family care leave
The family care leave of an employee shall be deemed to end on any of the following days (Article 16-5 (3) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
Where an employee is notified pursuant to the above and notified by his/her employer of the start date of his/her service: The day before the start date of his/her service
Where an employee has given a notice pursuant to the above but has not been notified by his/her employer of the start date of work: On the date when 30 days elapse from the date on which the employee is notified
Where an employee fails to give a notice pursuant to the above: On the date when 37 days elapse from the date on which a family in need of care dies