★ Brief
The company has been working with a business company in Shanghai since September 18, 2017, as a legal advisor. On March 16, 2020, Qiu gave birth to a son, and the business company sent him a “notice of non-renewal of employment contract”, which stated that the company would not renew the employment contract, but because Qiu was still breastfeeding, the employment contract would be extended until the end of the breastfeeding period, i.e. March 15, 2021. The company will not renew the employment contract.
On December 12, 2020, Qiu was unable to continue breastfeeding due to her own health reasons, so she proposed to the company that the breastfeeding period should be terminated due to the disappearance of the breastfeeding situation, and hoped that the company would handle the withdrawal procedures for her and settle the economic compensation, etc. However, the trading company did not recognize Qiu’s viewpoint and said that if Qiu left early, she would be regarded as resigning voluntarily and should not receive economic compensation, but Qiu still insisted on her view.
On February 1, 2021, Qiu applied for labor arbitration and requested the trade company to pay the economic compensation according to law, and then appealed to the court.
★The verdict
After hearing the case, the court of second trial held that according to the relevant laws, the breastfeeding period for female workers shall be from the birth of the baby to the age of one year, which is the period during which the employer fulfills its legal obligation to protect the legitimate rights and interests of the workers and does not change according to the feeding method or whether the individual has the conditions for breastfeeding due to physical reasons. At the same time, ‘Labor Contract Law of the People’s Republic of China’ stipulates that if the labor contract expires and there is a situation where the female employee is in pregnancy, maternity or breastfeeding, the labor contract shall be extended until the situation disappears, so the term of the labor contract between the two parties shall be extended until the termination on March 15, 2021.
Therefore, Qiu initiatively resigned her job due to personal reasons before the expiration of the labor contract, her request for the company to pay economic compensation is lack of legal basis, the court does not support.
★ Comment of Lawyer Tang
The breastfeeding period refers to the period during which a female worker breastfeeds her baby, i.e., the period from the start of breastfeeding to the cessation of breastfeeding, regardless of whether she breastfeeds or not. According to Article 14 of the former Ministry of Labor’s “Questions and Answers on the Regulations on Labor Protection for Female Workers”: “The rules shall apply to all female workers who breastfeed (including artificial feeding) infants within one-year-old. Enterprises and institutions that are in a position to do so may also extend the breastfeeding period appropriately.” Even if a female employee is unable to breastfeed due to personal health reasons and uses other artificial feeding methods to raise her baby, the breastfeeding period provision shall also apply.
So, can breastfeeding be voluntarily abandoned?
We tend to believe that, although in practice, the actual breastfeeding period may be less than or more than one year due to individual differences, the one-year “breastfeeding period” is a legal period established by law to protect the legitimate rights and interests of female employees, and cannot be easily waived by the employees themselves. Moreover, if the baby is particularly weak, the breastfeeding period can be extended on the ground of the medical department upon certification.
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