Holidays and leaves in Korea
28 Feb 2018
In a workplace setting, holidays and leaves are essential in that they grant employees their rightful rest and provide employees the basic necessities as human beings. On that note, holidays and leaves in Korea can generally be divided into two categories: 1) statutory holidays and leaves in which the conditions and effect of the use of holidays and leaves are strictly regulated under the law; and 2) contractual holidays and leaves in which the employer and the employees agree on the terms of the use of holidays and leaves. The statutory holidays and leaves consist of weekly holidays, annual leaves, maternity leaves, menstruation leaves, etc., while the contractual holidays refer to public holidays, annual company foundation day, summer vacation, congratulatory and condolence leaves, etc.
(1) Weekly holidays
An employer should grant an employee who has worked all of his/her weekly working days a weekly holiday with pay at least once a week. Such weekly holiday does not necessarily have to fall on a Sunday, but the employer has to pay an additional 50% of the standard wage rate if the employee works on the weekly holiday.
(2) Annual leave
An employer should grant an employee who has worked at least 80% of his/her working days within a year 15 days of annual leave with pay. An employee who has worked for three years or longer shall be granted an additional day in paid leave on the fourth year, and shall add an additional day every two years thereafter. The number of annual leave with pay however shall not be more than 25 days.
An employer should grant annual leave with pay on a date designated by the employee and shall pay the employee the standard wage rate as specified under the employment regulations. However, in case where granting the annual leave on a date designated by the employee causes significant lapse in the employer’s business operations, the employer has the right to make changes to the date of the employee’s annual leave.
Moreover, if the employee does not use the annual leave until it expires despite the employer’s conscious efforts to encourage the employee’s use of annual leave, then the employer is not obligated to compensate for such unused leave.
(3) Maternity leave
An employer shall grant a pregnant employee 90 days of maternity leave with pay. As the aforementioned ‘90 days’ refers to 90 calendar days, weekends and other kinds of holidays that fall during the 90-day period must be taken into account when counting the 90 days. Moreover, if a pregnant employee uses more than 45 days of her prenatal period as maternity leave, she may use up to 45 days as maternity leave in the post-natal period. The employer shall pay the employee’s wages for the first 60 days of the leave period, while the employment insurance fund will be responsible for the employee’s wages for the remaining 30 days. The days in excess of 90 days of maternity leave may be granted without pay at the employer’s discretion.
Nevertheless, 90-days’ worth of pay during maternity leave may be entirely paid by the employment insurance fund, provided that the employer meets the conditions to qualify as a “Company Eligible for Preferential Support”.
(4) Menstruation leave
An employer shall grant a female employee one day of menstruation leave per month upon her request. Menstruation leave may be unpaid.
(5) Childcare leave
An employer should grant childcare leave, if an employee requests for a period of leave to nurture a child aged eight or under, or a child who is in his/her 2nd grade or below in an elementary school. The duration of childcare leave should not be more than one year and be included in the employee’s period of continuous service.
An employer should neither dismiss nor treat the employee on childcare leave in an unfair manner on account of taking childcare leave. The employer also should not dismiss the worker during the childcare leave period. At the end of the leave period, the employer should reinstate the employee in the same position he/she occupied prior to the leave or any other position that pays the same level of wages as the position he/she held before the leave.
(6) Labor Day
The Labor Day, May 1st, should be granted to workers by law as the statutory holidays.
An employer is responsible for ensuring that the employees are granted holidays and leaves as specified under the related laws. Inclusive of such employer’s responsibility, the conditions of employment must be determined on an equal footing between the employer and the employee, and according to the employees’ free will. The conditions of employment so determined must surpass those of the statutory labor standards, and if the conditions of employment fail to meet the statutory labor standards, they shall not be effective even if they have been decided by the employee’s free will.
All in all, given that the determination of the conditions of employment may require a review from the legal perspective, it is highly recommended to seek a legal expert’s advice.