pregnant helper -- wants to give birth in hong kong

this is a rather dramatic situation. a friend of mine was just informed by her helper that the helper is 4 month pregnant. bad luck -- my friend herself is 6 month pregnant with TWINS.


they obviously need someone else to help out for at least a few months. they first inquried whether the pregnant helper was willing to take a lump sum and resign, as many other people have done in a similar situation. there was no coercion whatsoever -- they were just trying to work out a solution that works for everyone. the helper said she wanted to continue working.


the employers said then they would pay her maternity leave as required by the law, and she could come back after her maternity leave. but then the helper informed them that she wanted to give birth in hong kong and is not planning to go back to the philippines either before or after birth. she even suggested that she would not take maternity leave so that she can stay at the employer's home.


my friend cannot think of a way that this would work as her helper suggested. for one thing, they certainly cannot expect the current helper to be of much help right after her giving birth, and need to hire someone else to take care of their own babies. they don't have a big apartment and no space for two adults, two helpers and three babies! for another, with their own newborn babies, they don't think they can assume the task of taking care of the helper in her late pregnancy and later her baby (well, theoretically they don't have the obligation to look after the helper but it's hard not to if she lives with them -- just imagine what my frient is going to do when the helper goes into labor and she has her own babies to take care of at the same time).


in any event, my friend has the following questions that she hopes people on this forum can help with:


1. is an employer obligated to provide free accommodation to a helper who's supposed to be on maternity leave but for some reason does not want to leave? theoretically i think they don't need to allow the helper's baby in their home, but you certainly cannot humanely separate the baby and the mother. if they don't want them at the employer's home, are they obligated to pay for some other accommodation for them? (then of course is the question of what kind of accommodation is considered suitable for a newborn and the mother)


2. is there any way they can have the helper stay somewhere else and pay for the accommodation during her late pregnancy but before she's supposed to take maternity leave? as said, they need to hire someone else during that period and they won't have the space if the current helper also stays in. i suspect this will not be allowed as a helper is not allowed to live out unless she's on leave or vacation, but am wondering whether an exception can be made in a rather distressed situation like this.


if anyone has had similar experience or other suggestion, my friend will highly appreciate it. only constructive advice, and no insult on either party please. this is a messy enough situation and my friend is almost crying. they are willing to fulfill all their obligations under the law but probably canno offer much more, as they are struggling themselves already -- her husband is worried about losing job everyday and she's a little more secure on her job only because of her pregnancy.


thanks a lot

def a messy situation, all i can suggest is that your friend goes to immigration and explains everything to them - that would be the best bet rather than all of us on this forum trying to second-guess...

thanks ldsllvn. my friend is definitely going to call up the labor department. meanwhile she just wanted to know how people with similar experience (if there are any!) have any suggestion.


thanks again

thanks beancurd. problem, though, is that the helper has no intention to leave the employers' home after birth. so the question is whether the employers are obligated to either allow her to stay in or provide other suitable accomodation for her (cannot be too cheap i guess).

beancurd -- guess that's the plan (unless the employers pay for her other accommodation in hong kong). my understanding is that the employers' are not obligated to allow the baby in their house, but are they really going to tell the helper fine you can stay but not your baby? i'll have to say the helper seems to want to take a little advantage of the employers -- i'm not blaming her; she's just trying to maximizing her own benefit; but the employers are really trapped there and don't know what to do.

helpers are allowed paid 10 weeks maternity leave.


"Maternity Leave commences on the date of confinement if it occurs before the scheduled maternity leave. In this case, the pregnant domestic helper should give notice of the date of confinement and her intention to take 10 weeks' Maternity Leave to her employer within seven days of her confinement."


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Employer is not obligated to house baby under the employer;s house ( cruel as it may sound but this is not a family issue)


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Can I dismiss my domestic helper who just found to have pregnant ?


A pregnant domestic helper enjoys employment protection from the date she is confirmed pregnant by a medical certificate to the date she is due to return to work upon the expiry of her Maternity Leave.


So, You could eventually terminate the employment contract on the basis that she is unable to perform her duties....which will be true since she will have her hands full with her new baby around.


also consider point four below to watch out for if she has to tend to the baby


he law only allow termination of employment without notice in very special circumstances, such as your maid,


1. wilfully disobeys a lawful and reasonable order;

2. misconducts herself;

3. is guilty of fraud or dishonesty;

4. is habitually neglectful in her duties.

problem, though, is that the helper has no intention to leave the employers' home after birth. so the question is whether the employers are obligated to either allow her to stay in or provide other suitable accomodation for her (cannot be too cheap i guess).


-- Helper's being inconsiderate. She has to leave her employer's home after birth. Regarding your question, she pays for the accomodation herself since she has PAID maternity leave. She can get a cheap room for herself and her baby, I'm sure she's friends to help her find one. This should cost 1500 - 2000 per month.


--- It should be the employer's decision and not the helper's whether she stays in her employers house or not after birth. Employer's being considerate herself being pregnant too, especially with TWINS!


-- There's no way this helper can help her employer out with her twins when she gives birth herself. It's mom's instinct, you'd take care of your baby first before others'.


-- Her employer can terminate her contract once she's given birth, paid maternitly leave. Her employer wouldn't have any illegal grounds of termination by then since she's given the helper what she's supposed to get.


-- My current helper gave birth in HK while with her previous employer. She had her husband came and took care of her and her baby and rented a small flat - all at her own expense. When she's recovered, she went back to work for her employer and baby went back to Philippines with her husband. Definitely heart breaking and we all have sacrifices to make anyway.


hope everything goes well with your friend and her helper.

to avoid any complications going forward, you should put things down in writing and give her a copy and have her acknowledge it - i.e. the maternity leave benefits, non provision of accomodation for her baby, when she is due back to work, ( i like the suggestion earlier that if she is not back to her regular duties after xxx weeks, it would imply she is resigning) etc etc.


as i said, this is not a family issue so let's be objective about it

If she's four months pregnant, she can still fly back to the philippines

"for a holiday" to visit her family

I think if I were in your friends situation, apart from feeling terrible as she must, I would send an email to immigration, stating all the facts, due date of twins, due date of helpers child, and the impossible situation, with 3 screaming babies! yuck! and the overcrowding situation. Surely in those circumstances they can make her go back to the Philippines. They are good at answering emails.

What should be a very happy time for your friend must be making her ill.

Having twins puts her at higher risk for complications, and pre-eclampsia anyway, she is the one who really needs looking after by a good helper, not one who is pregnant herself.

If the helper is anything like mine, who is a whimp, makes a real fuss with a common cold, wants to run to the Doctor with a cold,then god help her, she will probably cost your friend a lot of money and make a hell of a fuss having one baby. I really sympathise with you friend. If she keeps the helper at her house she will also possibly have the relatives of the helper trotting in and out invading her privacy.

An update on this story: my friend called both the labor department and the immigration department and, quite to her disappointment, no useful guidance at all. Each department said it’s a question for the other and not itself, and, when being told that the other department said the same thing, all they said was that:


1. Under the relevant regulation and the contract, the FDH herself should stay with the employer during her employment, and there is no mention in the book about whether there is an exception for maternity leave. So the guy handling general inquiry at immigration actually mentioned that if they learned any helper stay outside even during maternity leave they generally would have to pursue the case, but they wouldn’t answer the question whether they would make an exception for a situation like my friend’s.


2. The relevant regulation and the contract do not address the question as to whether the employers should accommodate the helper's baby during maternity leave, so they won’t answer that question either.


I cannot believe the departments never encountered this question before and had no precedents to refer to, but apparently that’s the case.


The only valuable advice is from immigration that my friend send a formal written request to the FDH unit asking for approval for an exception to the general stay-in rule. Guess that’s the only thing she can do now, though I’m not sure how helpful the response would be, as this is not only a question about whether a helper MAY VOLUNTARILY stay out during maternity leave, but whether the employer can ASK her to stay out in this particular situation.


what a hassel!

If the immingration department won't give you a straight answer, some of them are just what we Brits call jobs worth's, in other words they are just like trained monkeys wrapped up in their own importance. then I think maybe you should get advice from a good solicitor, good luck

I think it is unlikely that, in any government department, you get a proper, informed answer to an unusual situation from the front line staff. These people are used to handling the common questions and may not have the experience or seniority to deal with anything complex.


I suggest that your friend write to the director of each department (if she hasn't been given the name and level of the appropriate person), outlining the problem and the enquiries that have been made so far. It can be time-consuming finding the right person(s) within a bureaucracy but, once she has it, things can move quickly.


The key is perseverence (and asking the right questions - always get the name and contact details of the people you speak to and, if they are not able to help ask them who you should contact next - in their department ). Although they will be keen to pass the buck (eg to the other department) if they are not equipped with the answer, they may be more careful with putting you onto the right person if you know their name and can mention it to the new (hopefully higher-ranking )officer.

Hi Xmauix,

I just wanted to clarify a point - in order for PAID maternity leave, the helper must have been emloyed for a period of not less than 40 weeks immediately before the commencement of the scheduled maternity leave.


Otherwise, the helper gets maternity leave (10 weeks) - unpaid.

Just follow the law. Thats ALL the courts will want to see when the maid turns round and tries to accuse you of being unreasonable. My best advice. SEEK LEGAL ADVICE!!!! We did after being dragged thru the Labour court and finally the criminal court for dismissing our lazy sneaky pregnant helper who was our for a free ride. WE forked out thousands and thousands in the end and could have saved a LOT of hassle and expense simply by calling a lawyer first. Sorry to sound harsh but a few sad nasty helpers ruin it for EVERYONE. I am left with very little respect.

Hello Artois, I missed whether the helper's been with the employer for at least 40 weeks before getting pregnant. Hence if not, you're right, she's not entitled for a paid one.


;)

with other recent threads discussing how to handle the situation when your helper gets pregnant, i just wanted to update on this story.


my friend was never able to get a clear answer from the gov depts as to whether she's obligated to either allow the helper to stay in their home with her own baby or pay for her other accommodation in HK (or even whether that's allowed given the no-live-out helper rule) during her maternity leave. meanwhile the helper's work attitude deteriorated as the employers had not agreed to her request. at the end the 8-month pregnant employer herself is too tired of fighting this and decided to just pay for the helper's accomodation elsewhere during maternity leave.


then just two weeks ago the employers learned that they needed to relocate out of HK due to the husband's job loss, which they will do after my friend gives birth, which is happening any time now. apparently in this case they can terminate the helper due to their relocation. the helper asked whether the employers can refer her to another job, and the employers did not agree to, as they could not in their honest opinion give her positive recommendation.


so the end is that nobody won. the employers certainly had a miserable time trying to figure out how to handle the helper's rather surprising request, and was only relieved when they lost job. the helper certainly cannot get another job easily with her own pregnancy and no reference from the employers and will have to go back, contrary to her wish to give birth here. when she made her request she probably thought the employers would surely be able to figure out a way to satisfy her as she thought they are rich, but in fact not a lot of people are rich enough in the current environment and most are actually quite vulnerable.