Can Workers at Small Businesses (Under 5 Employees) Take Parental Leave? 2026 Complete Guide

Can Workers at Small Businesses (Under 5 Employees) Take Parental Leave?

"Our company has fewer than 5 employees — can I still apply for parental leave?" Many people have this question. The short answer is: workers at businesses with fewer than 5 employees can apply for parental leave (육아휴직).

Why Is Parental Leave Available Even at Businesses Under 5 Employees?

It is widely known that the Labor Standards Act (근로기준법) applies in a limited way to workplaces with fewer than 5 employees. Indeed, provisions such as advance notice of dismissal, annual leave (연차유급휴가), and certain severance pay (퇴직금) rules vary depending on the number of regular employees.

However, parental leave is based not on the Labor Standards Act but on Article 19 of the Act on Equal Employment and Support for Work-Family Reconciliation (남녀고용평등과 일·가정 양립 지원에 관한 법률 제19조) (hereinafter the "Equal Employment Act"). This Act applies to all employers regardless of workplace size. Therefore, even at a workplace with only one employee, the employer must allow a worker's parental leave request.

If an employer refuses parental leave without justification or disadvantages a worker for taking it, the employer may be subject to a fine of up to 500,000 won under Article 37 of the Equal Employment Act (남녀고용평등법 제37조).

Note for foreign workers: Your employment contract may set out additional conditions, but the statutory right to parental leave described here is the legal minimum that applies to all workers.

Eligibility Requirements for Parental Leave

To apply for parental leave, you must meet the following requirements:

• Eligible child: A child aged 8 or under, or in the second grade of elementary school or below
• Employment insurance coverage period: A cumulative insured unit period of at least 180 days before the start date of parental leave
• Leave period: Up to 1 year per child (each parent may use this separately)

Key Points When Claiming Parental Leave Benefits

While parental leave itself is available regardless of workplace size, you must be enrolled in employment insurance (고용보험) to receive benefits. The obligation to enroll in employment insurance applies equally to workplaces with fewer than 5 employees, so most workers will be eligible for benefits.

The application deadline must also be strictly observed. Parental leave benefits must be applied for within 12 months from the day following the end of parental leave, pursuant to Article 116 of the Enforcement Rules of the Employment Insurance Act (고용보험법 시행규칙 제116조). The Seoul High Court did overturn a non-payment disposition for a worker who missed the deadline (2017누80815), but this was an exceptional case involving special circumstances. Treat the deadline as a firm rule.

In addition, parental leave benefits are premised on actually caring for your child while not employed. If you leave your child in someone else's care and stay abroad for an extended period, you may face benefit restrictions and a repayment order. The Seoul High Court ruled that a repayment disposition against a worker who stayed in Mexico for approximately 8 months was lawful (2014누56002).

Government Support Employers Should Know About

Small employers with fewer than 5 employees can take advantage of government support to ease the burden of granting parental leave. The Ministry of Employment and Labor pays a parental leave support subsidy to employers who grant parental leave, and provides additional support when a replacement worker is hired. For details, visit the Employment Insurance website at www.ei.go.kr.

Practical Checklist

1. Confirm that you are enrolled in employment insurance
2. Confirm that your cumulative insured unit period is at least 180 days
3. Submit a written parental leave application to your employer at least 30 days before the start of parental leave
4. Apply for benefits within 12 months after the end of parental leave
5. Be aware of benefit-disqualifying situations during leave, such as taking up employment or staying abroad for an extended period

If you want to find out how much unemployment benefit or parental leave benefit you may be entitled to in your situation, try the unemployment benefit eligibility checker at Workbear (workbear.kr). It lets you easily check complex eligibility requirements.

This article is for informational purposes only and does not constitute legal advice. For specific cases, consult a certified labor attorney (노무사) or lawyer.