Hello, this is attorney Choi Jong-ha of Cheongchul Law Firm.

Pregnancy and childbirth mark one of the most important periods in an employee's life, and for a company it is also the period when personnel and attendance management demand the greatest care. The Labor Standards Act and the Equal Employment Opportunity Act contain a range of provisions that protect employees during this period, and most of them expose the employer to criminal penalties or administrative fines if breached. This post organizes the maternity protection rules that are most often overlooked in practice.

First, overtime work is absolutely prohibited.

Article 74(5) of the Labor Standards Act (근로기준법 제74조 제5항) provides that an employer must not require a pregnant employee to perform overtime work and, upon her request, must transfer her to lighter duties. Overtime during pregnancy is prohibited without exception, even where the employee consents. Note in particular that a breach is a criminal offence under Article 110 of the same Act, punishable by imprisonment of up to two years or a fine of up to KRW 20 million.

Second, night work and holiday work are prohibited in principle.

Article 70(2) of the Labor Standards Act (근로기준법 제70조 제2항) provides that an employer must not require a pregnant employee, or one within one year of childbirth, to work at night between 10 p.m. and 6 a.m. or to work on holidays. Exceptionally, such work is permitted only where an employee within one year of childbirth consents, or a pregnant employee makes an explicit request, and the employer obtains authorization from the Minister of Employment and Labor. Even if the employee says she personally wants to work at night, the arrangement is unlawful unless the company has completed the prior authorization procedure.

Third, the right to request reduced working hours during pregnancy.

Article 74(7) of the Labor Standards Act (근로기준법 제74조 제7항) provides that an employee within 12 weeks of pregnancy or after 36 weeks of pregnancy may apply for a two-hour daily reduction in working hours, and the employer must allow it. Wages may not be cut on account of the reduction. Granting the reduction on condition of a wage cut is itself unlawful.

That said, the Ministry of Employment and Labor has taken the view that, while cutting wages because of reduced working hours during pregnancy risks breaching the Labor Standards Act, overtime is in principle prohibited for pregnant employees, so a failure to pay a pregnant employee a fixed monthly overtime allowance that labor and management agreed on in contemplation of overtime is not necessarily a breach of the Act (Women's Employment Policy Division-3721, 19 Dec 2022).

Fourth, paid time off for regular prenatal checkups.

Article 74-2 of the Labor Standards Act (근로기준법 제74조의2) provides that where a pregnant employee requests the time needed to receive regular prenatal health examinations, the employer must allow it and may not cut wages for that time. The common practice of recording a half-day hospital visit as an absence or half-day leave runs directly against this provision.

Fifth, maternity leave and parental leave.

Ninety days of leave before and after childbirth (120 days for multiple births) are guaranteed (Article 74(1) of the Labor Standards Act), and an employee may request parental leave of up to one year to raise a child aged eight or under, or in the second grade of elementary school or below (Article 19 of the Equal Employment Opportunity Act, 남녀고용평등법 제19조). An employer may not refuse such requests without justifiable grounds, nor subject the employee to dismissal or other disadvantageous treatment because of the leave. In particular, do not overlook that the maternity leave period and the 30 days thereafter fall within the dismissal restriction period under Article 23(2) of the Labor Standards Act.

Maternity protection rules are not mere welfare items; most are mandatory provisions whose breach leads to criminal penalties or administrative fines against the employer. Both the company and its managers should settle in advance that this is not an area a manager may decide at will on the basis that the employee wanted it or that it has always been done that way.