What counts as 12 months of continuous employment for annual leave, and how to prove it

Employees and employers alike are often unsure how to apply in practice the requirement of "12 months or more of continuous employment" for paid annual leave after a change of job, and practice differs between regions. The main point of divergence is whether there may be a gap between leaving the former employer and joining the new one.

The first view is that once the employee has completed 12 months of continuous employment with the former employer, annual leave is available regardless of any gap before joining the new employer. The Beijing No. 2 Intermediate People's Court's compilation of typical Labor Dispute cases (2008-2017), for example, records the view that "12 months or more of continuous employment" means that the employee has previously had a 12-month continuous period of work, so that paid annual leave is available on joining the new employer. Article 62 of the Questions and Answers (I) of the Beijing High People's Court and the Beijing Labor and Personnel Dispute Arbitration Commission on the Trial of Labor Dispute Cases (Jing Gao Fa Fa [2024] No. 534), on how to calculate the period for which an employee may take paid annual leave, states that "12 months of continuous employment" means that, after starting work, the employee has worked without interruption for 12 months in the same employer or in two or more employers. Similarly, in reply to a question published in the Tianjin Municipal People's Government's "Government-citizen interaction: selected messages" under the heading "More than 12 months of continuous employment: paid annual leave is also available on joining a new employer", the Government stated that the condition for paid annual leave for enterprise employees is that the employee has had a period of more than 12 months of continuous employment (source: https://www.tj.gov.cn/zmhd/wmfkxd/202511/t20251110_7174826.html).

The second view accepts that 12 months of continuous employment with the former employer has been completed but imposes a limit on the gap. The Notice of the Chongqing Labor and Social Security Bureau on Issues Concerning the Implementation of the Measures for the Implementation of Paid Annual Leave for Enterprise Employees takes the view that "12 months or more of continuous employment" in Article 3 of the Measures may be time worked continuously in the same employer or in different employers, provided that the interval between employments does not exceed one month; if it does, the period of continuous employment is recalculated.

The third view applies the paid annual leave rules strictly, with no interruption permitted. In a labor contract dispute recently published on the official WeChat account of the Pudong New Area People's Court of Shanghai, the court held that Mr Yu had terminated his employment with his former employer on 30 September 2022 and joined Company A on 10 October 2022. Apart from the statutory National Day holiday, there was still a gap of two working days, which did not satisfy the requirement of 12 months or more of continuous employment, so the period had to be recalculated. Mr Yu therefore had no statutory annual leave for the period from 10 October 2022 to 9 October 2023; on 10 October 2023 he had completed 12 months of continuous employment and could take statutory annual leave from then on. In other words, apart from special cases such as statutory holidays, the two employments must dovetail without a break if statutory annual leave is to be available immediately on joining the new employer. Shenzhen has an express rule to the same effect: Article 109 of the Adjudication Guidelines of the Shenzhen Intermediate People's Court on the Trial of Labor Dispute Cases (Shen Zhong Fa Fa [2015] No. 13) provides that "12 months or more of continuous employment" in Article 3 of the Measures includes both 12 months of continuous employment with the current employer and 12 months of continuous employment across different employers, except where there is an interruption in employment when the employee joins the new employer.

Minton's note: because judicial practice and views differ between regions, employers should first familiarise themselves with the local rules before deciding whether a newly hired employee is entitled to annual leave immediately. As to how the employee proves "12 months or more of continuous employment", employers may, in the light of the circumstances, ask for the following.

First, the certificate of termination. The former employer's certificate records the date of termination, which allows an accurate check of whether there was a gap before the start date with the new employer and whether the period of work exceeds 12 months.

Second, social insurance contribution records. Together with the certificate of termination, these show whether contributions run continuously for more than 12 months and in which month they ended, and so whether they dovetail with the month of joining the new employer.

Third, the employment contract. The contract with the former employer allows the start and end dates to be checked for continuity.

Fourth, bank statements of wages. Records of wage payments issued by the bank corroborate the period of actual employment and support the case for continuous employment.

At the beginning of 2026 the Ministry of Human Resources and Social Security announced that it would promote revision of the Regulations on Paid Annual Leave for Employees, and new rules are expected before long; when they appear, it will be possible to see whether the question discussed here is clarified.

Legal basis:

1. Article 2 of the Regulations on Paid Annual Leave for Employees provides that employees of State organs, organizations, enterprises, public institutions, private non-enterprise units and individually owned businesses with employees who have worked continuously for one year or more are entitled to paid annual leave.

2. The Measures for the Implementation of Paid Annual Leave for Enterprise Employees provide that employees who have completed 12 months or more of continuous employment are entitled to paid annual leave.

3. In its Reply on Issues Concerning the Measures for the Implementation of Paid Annual Leave for Enterprise Employees (Ren She Ting Han [2009] No. 149), the General Office of the Ministry of Human Resources and Social Security stated that "12 months or more of continuous employment" covers both 12 months of continuous employment with the same employer and 12 months of continuous employment across different employers. Working time includes periods of full-time work in State organs, organizations, enterprises, public institutions, private non-enterprise units and individually owned businesses with employees, as well as periods of military service in accordance with the law and other periods counted as years of service under national laws, administrative regulations and State Council provisions, which are treated as working periods. Working time may be established from personnel records, the employer's social insurance contribution records, the employment contract or other legally effective supporting materials.