Target and period of childcare leave
Target
Where a pregnant female employee or an employee applies for a leave of absence (hereinafter referred to as "childcare leave") in order to enjoy maternity protection or to raise his or her children (including adopted children) aged eight years or younger or in the second grade or lower of elementary school, respectively, their employer shall grant permission therefor (the Main Text of Article 19(1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
Period of childcare leave
The period of parental leave shall not exceed 1 year (main sentence of Article 19(2) of 「Equal Employment Opportunity and Work-Family Balance Assistance Act」).
However, where an employee falls under any of the following, an additional parental leave of up to six months may be used (proviso to Article 19(2) of 「Equal Employment Opportunity and Work-Family Balance Assistance Act」).
· Either the father or the mother, if both parents have taken parental leave of at least three months each for the same child
· Either the father or the mother as defined under Subparagraph 1 of Article 4 of 「Single-Parent Family Support Act」
· Either the father or the mother of a child with disabilities as prescribed by 「Enforcement Rule of the Equal Employment Opportunity and Work-Family Balance Assistance Act」
· An employee may divide and use parental leave up to three times, and the number of parental leave used by pregnant employees for maternity protection shall not be included in the number of divided use of parental leave (latter part of Article 19-4(1) of 「Equal Employment Opportunity and Work-Family Balance Assistance Act」).
Sanctions for violations
Employers who do not allow childcare leave even though they have received childcare leave from employees will be fined up to KRW 5 million (Article 37 (4), subparagraph 4 of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
※ The period of service during childcare leave
Q. Our company is considering the length of service as a requirement for promotion. If I use childcare leave, will the period be excluded from the service period?
A. As there is a childcare leave system to protect the childcare environment of children, the law guarantees that the period of use of childcare leave is included in the period of service, even if it is not the days of actual work (latter part of Article 19 (4) of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
In other words, the employee’s service period is calculated when promotion, severance pay, and the number of days of annual paid leave is calculated. The period of childcare leave is recognized as a period of service.
※ In the case of calculating the number of days of annual paid leave, it will apply to employees who apply for childcare leave after May 29, 2018 (Article 2 of Addendum of the Labor Standards Act).
Restrictions on childcare leave
Reasons for restrictions
Childcare leave shall not be permitted where an application is filed by an employee who has worked in the business for less than 6 months by the day preceding the start date of childcare leave (hereinafter referred to as “scheduled start date of leave”) (proviso to Article 19 (1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act and Article 10 of Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
Application for childcare leave
How to apply
An employee who wishes to apply for childcare leave shall submit to his/her employer x-documents clarifying the following matters by no later than 30 days before the scheduled start date of leave (Article 19 (1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act and Article 11 (1) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
The applicant’s personal information, such as his/her name and date of birth
Name and date of birth of the infant for the childcare leave (pregnant employees taking childcare leave do not have to write the infant’s name and shall fill in the scheduled childbirth date instead of the infant’s date of birth).
Scheduled start date of childcare leave
Scheduled end date of childcare leave (hereinafter referred to as “scheduled end date of leave”)
Date of childcare leave application
In the case of using additional parental leave within six months, a statement confirming that the employee falls under the applicable category must be provided (supporting documents proving the relevant facts must be attached to the application)
Employees who wish to start parental leave within 18 months after the birth of a child may apply for parental leave at the same time when requesting maternity leave or notifying paternity leave. In this case, the employee must submit a parental leave application form to the employer, including the details specified in the aforementioned 1 to 5 as well as the expected start and end dates of maternity leave or paternity leave. The application for child care leave must be submitted at least thirty (30) days prior to the intended start date of parental leave (Article 11(2) of the Enforcement Decree of 「Equal Employment Opportunity and Work-Family Balance Assistance Act」).
In any of the following cases, you may apply for childcare leave by no later than 7 days before the scheduled start date of leave (Article 11(3) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
Where the pregnant employee has risks of miscarriage or stillbirth
Where a child is born before the due date of childbirth
A situation in which it is difficult to raise a child because of death, injury, illness, physical or mental disability, divorce from his/her spouse, etc.
Application for change of scheduled start date of leave
Where any of the following grounds arises before the scheduled start date of leave, an employee who has applied for childcare leave may ask the employer to change the start date of the leave before the original scheduled date, specifying the grounds thereof (Articles 12(1) and 11(3) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
Where a child is born before the due date of childbirth
A situation in which it is difficult to raise a child because of death, injury, illness, physical or mental disability, divorce from his/her spouse, etc.
Application for postponement of scheduled end date of leave
Scheduled end date of leave may be postponed only once, and in this case, the employee must apply to the employer 30 days before the scheduled end date of leave (Article 12 (2) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
However, if the scheduled end date of leave is to be postponed in cases where it is difficult to raise the child due to having risks of miscarriage or stillbirth by pregnant employee, spouse’s death, injury, illness, physical or mental disability, or divorce with a spouse, the application must be made no later than 7 days before the original scheduled date (Article 15-4, the latter part of Article 12(2) and Article 11(3), subparagraphs 1 and 3 of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
Withdrawal of application for childcare leave
Withdrawal of application
An employee who has applied for childcare leave may withdraw his/her application by not later than 7 days before the scheduled start date of leave (Article 13 (1) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
Invalid application
If any of the following grounds arises before the scheduled start date of leave after an employee file an application for childcare leave, no application for childcare leave shall be deemed to have been filed (Article 13 (2) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
1. Where a pregnant employee has applied for childcare leave: Miscarriage or stillbirth
2. Where employees not falling under paragraph 1 above has applied for childcare leave
Where the child dies
Where a child who is adopted isdismissed or his/her adoption is canceled
Where an employee who applied for additional parental leave within six months due to reasons such as being a single parent or having a child with disabilities no longer falls under either category
Where an employee who has applied for childcare leave is unable to raise the child because of injury, illness, physical or mental disability, divorce from his/her spouse, etc.
Where any of the above cases arises, the employee shall promptly notify it to the employer (Article 13 (3) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
Termination of childcare leave
Notification of the reason for termination
Where any of the following causes arises to an employee on childcare leave, he/she shall notify the employer of such fact within 7 days from the date on which such cause occurs (Article 14 (1) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
1. Where a pregnant employee is on childcare leave: Miscarriage or stillbirth
2. Where employees not falling under paragraph 1 above are on childcare leave
Death of an infant
Where the employee does not reside with or raise the infant
Where an employer is notified of the death, etc. of a child from an employee on childcare leave pursuant to the above, he/she shall designate the start date of work within 30 days from the date of notification and notify the employee thereof (Article 14 (2) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).
End date of the childcare leave
An employee’s childcare leave shall be deemed to have been terminated on any of the following days (Article 14 (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 work: The day before the start date of his/her work
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 cause, such as the death of a child, occurs
Where an employee on childcare leave commences a new childcare leave, begins maternity leave, or reduces working hours for the childcare period, the childcare leave shall be deemed to have been terminated the day before the new childcare leave, maternity leave, or start date of reducing working hours (Article 14 (4) of the Enforcement Decree of the Equal Employment Opportunity and Work-Family Balance Assistance Act).