Working From Home While On Maternity Leave Be Legally Eligible For Full Salary ? - CiteHR
Dinesh Divekar
Business Mentor, Consultant And Trainer
Rajanassociates
Legal Counsel
Raj Kumar Hansdah
Shrm, Od, Hrd, Pms
Jyoti_jain004
Human Resources

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Dear Seniors,
Can a female employee who has been working with the Company for more than 1 year and has been a good performer, who has agreed to work out of home while being on maternity leave, request for her full salary to be paid instead of just Basic+DA as per law..??
What should be stand taken by the Company in this case when it becomes evident that the employee is working and is productive even though she is working out of home.
Kindly advise regarding the decision to be taken fom a legal and human aspect in this situation.
Regards,

Dear Ms Jyoti Jain,

Work from home during maternity is bad precedent. It is illegal too and there are no such provisions under MBA 1961.

Have you checked what is the purpose of maternity leave? Why women are told to take rest during that period? Why doctors recommend rest during this period?

The pregnant woman in question is a good performer that is why you have floated this idea. If you tell this woman to work from home, it will become a trend in your company. In this particular case everything may go smoothly. However, at times pregnancies are complicated. How other women will handle both - tending baby (rather infant) and managing office activities? Just recently I have seen a case where a new born baby was crying non-stop for 3-4 months! Even during antenatal stage also pregnant women are not recommended to sit in one posture for longer period.

We talk lot about succession planning. Then why we are not able to manage replacement for a pregnant employee for few months? Pregnancies do not happen suddenly. HR or company's management should plan for woman employee's absence well in advance. Telling a pregnant woman to work from home shows dependence on the person and not on the process.

These are my candid opinions and perhaps little stiff too.

Thanks,

Dinesh V Divekar



.

Dear Ms.Jyoti Jain

Please refer to section 4(1) of the MB Act. According to this section the employer cannot employ a woman in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy. Section 4(2) prohibits a woman from working in any establishment during the six weeks immediatelyu following the day of her delivery, miscarriage or medical termination of pregnancy. So there is a legal prohibition on the employer to employ a woman during the six weeks immediately following the delivery. Also there is a legal prohibition on the woman employee to work during the six weeks immediately following the delivery. You should be aware there cannot be a contract contrary to the provisions of law. Therefore, even if the woman employee agrees to work during the six weeks immediately following the date of delivery the employer cannot employ her during the six weeks immediately following her delivery. Violation of section 4(1) is an offence under the MB Act and is punishable under section 21 of the Act. Even assuming that the woman employee had consented to work from home during the six weeks immediately following her date of delivery, this consent cannot be set up as a defence for a prosecution of the employer under Section 21 if the Act for violating Section 4(1) .Payment of full wages instead of Basic plus DA wil not be an extenuating circumstances to the employer to escape criminal liability as any contract or agreement contrary to law is void ab initio. Moreover, if the employee thinks so, she could even move the National Commission for Women or the State Commission for Women complaining against the employer.

Thank you Mr. Divekar and Mr. Harikrishnan for your frank opinions on the subject.
However I would like to add that I have seen many cases wherein the pregnant women themselves express the desire to continue working even till their 9th month since they prefer to take the most of their maternity leave after delivery of the child, since they would like to have more time at home to tend to the newborn and recuperate. What in your opinion should the Company do in such cases..!!
Thanks & Regards,
Jyoti Jain

Dear Ms Jyoti Jain
Please read section 5(3) of the MB Act. This section prescribes the maximum period for which any woman shall be entitled to maternity benefit as twelve weeks. This section also prescribes that out of this twelve weeks not more than six weeks shall precede the date of her expected delivery. In the MB Act there is no mandatory provision requiring the woman to avail maternity benefit for any specific period prior to the date of her expected delivery. This means that the woman can space her twelve weeks maternity benefit for a period not exceeding six weeks prior to the expected date of delivery and for six weeks after the date of delivery. Alternatively in an extreme case the woman may not avail even a single day of maternity benefit prior to her delivery and avail the twelve weeks maternity benefit starting from the day of delivery. In other words she can legally work upto the time she gets labour pains and once the pain starts get herself admitted in a hospital of her choice. But the legal prohibition contained in section 4(1) and section 4(2) is for the employment of the woman for six weeks following her date of delivery. I think I have clarified the issue raised by you.
With regards

I thank Mr. Divekar and Mr.Harikrishnan for their correct opinion.
Dear Jyoti;
There are specific reasons for the provision of Maternity Benefits in the form of full wages during the specified 12 weeks during Maternity Leave.
No employer has the legal (or moral) right to alter such provisions at their will and convenience.
Also, all would-be mothers should have a strong commitment towards the health and well-being of their unborn child and must resist any temptation or coercion by their employers.
Warm regards.

Dear Ms Jyoti Jain,
How to split the maternity leave, how much before and how much after is a choice of pregnant employee. During my days we did not bother much on this count. Only the thing we use tell pregnant employee to apply for maternity leave well in advance so that we could arrange her replacement.
The second thing is wherever I worked we paid full salary and not just Basic +DA. This full payment was considered as welfare measure.
Ok...
Dinesh V Divekar

Dear
Maternity Benefit is a statutory protection to Motherhood and human rights of the woman.Any cost cutting method or deviation from the rest guaranteed to the mother by Law i.e it should be leave with full pay will be a direct affront to this concept and a violation of Human Rights.
rajanassociates
https://www.citehr.com/285737-legal-...-industry.html

Dear Ms.Jyoti Jain

In your first post you have said that "Can a female employee who has been working with the Company for more than 1 year and has been a good performer, who has agreed to work out of home while being on maternity leave, request for her full salary to be paid instead of just Basic+DA as per law..??"Your presumption that as per law only Basic + DA need to be paid as per law is not correct according to the interpretation of Section 3(n) of the MB Act by the Honourable Supreme Court of India.

It will be of interest to all to know that in B.Shah vs.Labour Court and others reported in 1977 (35) FLR page 414 the Honourable Supreme Court of India has held the computation of maternity benefit has to be made for all the days including Sundays and rest days which may be wage less holidays comprised in the actual period of absence of the woman extending upto six weeks preceding and including the day of delivery as also for all the days falling within the six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equalling to 100 percent of the wages which she was previously earning in terms of Sec.3(n) of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interest of both the woman worker and her employer.

Dear Seniors,
One of our female employee who has been working with the Company for more than 2 year, who has agreed to work out of home from the fifth month of pregnancy. We agreed and paid her full salary.
Where as from the 7th month of pregnancy she was not able to do her work and send the daily reports.
What should be stand taken by the Company in this case when it becomes that the employee is not productive even though she is working from home.
Kindly advise regarding the decision to be taken fom a legal and human aspect in this situation.
Regards,
R.Bindu

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