Madhu.T.K
Industrial Relations And Labour Laws
Harsh Kumar Mehta
Consultant In Labour Laws/hr
Srinath Sai Ram
Hr Manager
Swati14111
Employee
Rangablack
Private Employee
+4 Others

Thread Started by #sabiha@leisureplay.in

Hello,
I am Sabiha, working as a HR for a software company. My doubt is whether we pay ESI and PF for an employee who is on maternity leave. One more doubt is if an employee is on maternity leave since Feb 201, as per the new amendment maternity pay should be paid for 6 months. will that be applicable to her?. Please clarify
9th June 2017 From India, Hyderabad
Sorry, in the above query year not typed correctly. If an employee is on maternity leave since Feb 2017?.
9th June 2017 From India, Hyderabad
1. Dear member, you have raised the issue regarding Maternity Benefit under provisions of ESI Act, 1948 and to inform that perhaps you may be aware that the maternity benefit to the eligible woman employee is to be paid by the branch office of ESIC ( based on certification she may have obtained from ESIS dispensary or ESI Hospital) and not by the employer.
2. The issue regarding entitlement for the MB under said Act is a question of fact and therefore, it will be more better if the woman insured person may contact the appropriate ESIS dispensary, obtain medical certification and contact the concerned branch office of ESIC to which she is attached. I think, appropriate branch office will pay her MB for the period, if she is eligible under said Act.
3. Further when the unit/company has not paid any wages to the woman insured person for her period of MB she obtained from ESIC, then why there should be any contribution under said Act.?
9th June 2017 From India, Noida
Dear Member
The amendment to Maternity Benefit Act came into effect w.e.f 01/04/2017. Since your employee has already been on maternity leave prior to the effective date of amendment, she is entitled for maternity benefit for 84 days only.
N.LOKANADHA BABU
MANAGER
10th June 2017 From India, Guntur
Dear Sabiha, whether we pay ESI and PF for an employee who is on maternity leave.? Payment made to an Employee under The Maternity Benefit Act, is not Salary.Consequently PF Deduction is not mandatory.The question of deducting ESI also does not arise because, ESI Covered Employees get maternity Benefit from ESI.during that time, they will not work and earn salary.Consequently, the question of deduction of ESI Does not arise.Maternity benefit is to the extent of 26 Weeks, whereas you have mentioned as 6 Months.please frame your question properly befitting the position you are holding.
10th June 2017 From India, New Delhi
I do not agree to what Srinath Sai Ram has said that payment made as per Maternity Benefit Act is not salary and therefore, no PF is required to be deducted. If so the maternity days will become non contributory periods which will certainly become negative when pensionable service and amount of pension are calculated. Therefore, if you pay salary to an employee who is not covered by ESI, during the maternity leave period, ie, maternity leave salary, you should deduct PF invariably.

An employee covered by ESI will not receive salary on any day on which she is on ESI leave. PF is deducted on salary paid. When there is no payout why should we think of payment of PF. Therefore, no PF when she is on ESI leave.

The ESIC had incorporated 26 weeks maternity leave with effect from 20th January, 2017 ( I guess).

Madhu.T.K
26th June 2017 From India, Kannur
Dear Mr MADHU, Please peruse the attachment of Judgement wherein it has been held that Maternity Benefit is not Salary
29th June 2017 From India, New Delhi

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1. Sir, good judgment as pointed our by Sh. Srinath Sai Ram because the term has been separately defined as "maternity benefit" under section 3(h) of said Act. However, I feel that in respect of payments for miscarriage etc. as mentioned under sections 9, 9A and 10 of said Act, the contributions in respect of EPF will be payable since such payments as mentioned in sections 9,9A and 10 have not been categorised as "maternity benefit" and have been mentioned as "leave with wages".
2. However, I understand that for the period for which such "leave with wages" are paid to the woman insured person, no maternity benefit will be payable under ESI Act, 1948 and rules/regulations framed thereunder (Ref. Section 2(22).
30th June 2017 From India, Noida
Thanks for sharing the ruling by Bombay High Court. The ruling came in the year 1958 whereas the present Act was passed in 1961, though the main contents of the principal Act 1930 were maintained. Now the highlight of the judgement is not the eligibility of the employee to get leave wages but the authority who ordered payment of wages. I would say that the women had approached the wrong authority, ie, the authority under Payment of Wages Act. It is not disputed that a woman employee is entitled to leave with wages for 84 days (now it has become 26 weeks) and the employer is bound to pay it.

Now coming to the views of PF, we can see that whatever the employee gets while on duty or on leave which have cash value are remuneration which will attract PF contributions. If you are on earned leave for, say, 90 days, you will certainly get full salary for the entire 90 days, or 3 months, but the payment will be made after deducting PF. This is because PF is paid on salary earned while on duty or on leave. At the same time, leave encashment will not attract PF deduction because that is not earned by working or being on leave. Similarly, retrenchment compensation will not attract PF deduction because this is not an amount earned while on duty or on leave.

Therefore, I support that if your employee is paid maternity benefit in the form of salary for certain days/ months, the same should be paid after deducting PF. Certainly, for the amount of medical bonus of Rs 3500, that you pay no need to deduct PF because it is not a salary but a benefit in the form of reimbursement of expenses met by the employee for her prenatal and post natal care.

Madhu.T.K
30th June 2017 From India, Kannur
Dear Madhu Sir, Please find attachment of Definition of Wages as per The Maternity Benefit Act, 1961
4th July 2017 From India, New Delhi

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So what? I did not say that wages include PF payable by the EMPLOYER. I meant to say that when you pay salary to a woman who is on maternity leave, the salary should be the sum after deducting PF, that is the employee's share of PF. Now you are showing me the definition of wages under the Maternity Benefit Act. Where is it written that wages should be paid without deducting employee's share of PF? There is no dispute that wages means the amount payable in gross and this should not include employers statutory contributions like bonus, Employer's share of PF, gratuity etc. If all these are included it would become the Cost to Company or the so called CTC.
Madhu.T.K
5th July 2017 From India, Kannur
I too agree with Mr Madhu point
30th August 2017 From Spain, Burgos
Hi,
Recently, my wife delivered in the month of August'17. She works for FORTIS hospital and has been attached to ESI since Feb'17. All documents were submitted to HR team, and they said all payments will be made by ESI. Company does not pay any benefits, every claim should be made through ESI.
We visited the ESI office and got to know that hospital expenses will be paid but not salary due to the clause that any employee attached to ESI should complete 9 months to claim the maternity salary benefits, however hospital expenses can be claimed.
Then we informed the HR team about the issue and they said, in this case we can't help if ESI does not pay, then it will be considered loss of pay, report to work after 6 months.
Kindly advise, what is the solution in this scenario.
Regards,
Ranganath
Bangalore
17th November 2017 From India, Bengaluru
It is true that under ESI scheme, the maternity benefit is available during the benefit period on one condition that the employee had contributed at least for 70 days during the last two consecutive contribution periods. In respect of newly joined employees, the first benefit period comes roughly after 9 months of her joining. If your wife had joined in the month of Feb, 2017, her first benefit period will start in Oct, 2017 only. That is why the ESIC has refused to grant her cash benefits, ie leave with pay for 26 weeks.
It is also true that when an employee covered by ESI goes for maternity leave, the employer has no obligation to give any salary. It is true in the case of all leaves under ESI. However, since she is not eligible to get ESI leave, employer is under a legal obligation to pay her salary during her maternity leave days. The employers cannot disown their liability just by saying that they had given coverage under ESI and it is upto her to get it from ESIC.
Now again, the law relating to Maternity Benefits states that leave is to be given if she had worked for 80 days DURING THE TWELVE MONTHS PRECEDING THE EXPECTED DATE OF DELIVERY. It does not say that 26 weeks leave is to be given if she had worked for 80 days in just three or four months of joining your establishment. The significance of "12 months immediately preceding the (expected) date of delivery" is to be understood as minimum service of 12 months and 80 days working including paid leaves and holidays during this 12 months service.
The above given is my own interpretation of the law, I have not found any such interpretation from any Court and, therefore, many of you may have different views on this. Please share.
Madhu T K
17th November 2017 From India, Kannur
Dear Seniors,
One of my friend, she joined on 20th Feb 2017 and will be on maternity leave from 01st Dec 2017. She is covered under esic and wants to claim maternity leave encashment under esic. Can she get the maternity leave encashment before delivery? and also please kindly suggest what are the documents she will need to submit to esic office. Furthermore, she has planned her delivery in a Pvt hospital, is there any way to claim the reimbursement from esic. Kindly help.
Regards
29th November 2017 From India, Aizawl
This was discussed in detail in the following thread.
https://www.citehr.com/592078-what-c...efit-esic.html
29th November 2017 From India, Kannur
Dear Shiv, before concluding that your Friend is covered under ESI, Consequently she is eligible for maternity Benefit, Please log in to ESI IP Portal to check for eligibility with ESI Insurance Number
30th November 2017 From India, New Delhi
1. Sir, ESIC has its own system of deciding eligibility of any insured person/woman for benefits under ESI Act, 1948 and payment of benefits. Benefit is called "maternity benefit" and is not any type of "maternity leave encashment" as you have mentioned.
2. In order to claim such maternity benefit, the insured woman must get the required medical certification either from authorised ESI dispensary or ESI Hospital to which she is attached. However, in case of private hospitals, the payment of such benefit is doubtful. In respect of Govt. Hospitals, I think, ESIC Branch Office Manager is authorised to pay the said maternity benefit (if the insured woman is otherwise entitled to) as a case of alternative evidence. It will be more better if the insured woman may contact the ESI dispensary as well as ESI Hospital to which she is attached before such delivery.
3. In order to examine eligibility of the insured woman for such benefit please see Rule 56 of ESI (Central) Rules, 1950 as well as Regulation 4 of ESI (General) Regulations, 1950. This is a question of fact and perhaps correct position can be ascertained from concerned Branch Office of ESIC to which insured woman is attached.
19th December 2017 From India, Noida
Dear Sir,
Subject:- Applicability of Maternity Benefits (Amendments) Act, 2017 to women employees who are covered under Employees State Insurance Act, 1948
What is the definition of Wages under ESI Act for checking Rs.21000/- threshold limit (CTC these days comprises of Basic+DA+HRA+Commuting Allowance+Medical Allowance+Special Allowance+PF Cont^+ESI Cont^+Insurance cost if any)
Will full Salary in hand will be paid during maternity leaves and if yes, who will pay Employer or ESI department? What is the definded procedure for claiming this?
What is the definition of "the average daily wage for the period of a worker's actual absence from work"
Facility of Creche and provision of work from home is not available?
17th January 2018 From India, Gurgaon
1. Dear member, the term "wages" has been defined under section 2(22) of ESI Act, 1948. The term "average daily wage" has been defined under Rule 2(1-A) of the ESI (Central) Rules, 1950. You can also see the definition of "standard benefit rate" as defined in Rule 2(7-A) of Rules as mentioned above. You can download above Act and rules from the website of ESIC.
2. Maternity Benefit is paid in cash by ESIC through their appropriate Branch Office and that too after receipt of medical certificates in respect of insured woman from authorised ESI Dispensary or ESI Hospital. It is also required that the claimant insured woman must be elegible for the said benefit on having contributed for minimum days as required under above rules.
3. Hope, the claimant may contact the ESI dispensary or ESI Hospital as well as ESIC Branch Office to which she is attached and get the proper guidance as well as proper medical certification which are required for claiming such benefit.
17th January 2018 From India, Noida
Swati,
It is the gross salary and not the CTC which is considered for ESI coverage. Normally the CTC will include the costs by way of salary and the statutory contributions like ESI, PF, Bonus, Gratuity etc that the employer should make in respect of each employee. These contributions are out of purview of wages.
Regarding work from home facility which is suggested in the Maternity Benefit Act, the responsibility is on the employer and not the ESI Corporation. If your employer is ready to give you work from home, them he can allow you and as you know it is not possible for all employees to work from home. A person who is working as a receptionist cannot do her work from home. Similarly, a chemist cannot test the items sitting at her residence. Therefore, the provision regarding work from home is not a mandatory provision.
Creche is also the liability of your employer. If your establishment has the sufficient number of women employees (50 employees in the case of establishments other than factories, 30 in the case of factories or 50 women or 20 children in the case of Plantations) then the employer should provide for creche.
18th January 2018 From India, Kannur
Thank-you Harsh and Madhu for replying to my query
Why women employees who are covered under ESI Act are not benefited under Maternity Benefit Act, 2017 at par?
Why there is a discrimination?
Whether full salary will be admissible during maternity leaves period?
Why will ESI branch office pay in cash? Why not cheque or NEFT?
If a women employee herself has to visit branch office every month to collect her salary?
18th January 2018 From India, Gurgaon
Swati seems to have lot of apprehensions. I would say that there are a lot of benefits availbale from ESI Corporation which the employer cannot offer to employees not covered under ESI. Employees under ESI gets treatment, medicine etc which the employer cannot provide to an employee. It is true that employer needs to provide creche facility to women employees and that is even available to an employee who resumes work after availing ESI leave. If your nature of work permits working from home, naturally, the employer can extend it to an employee covered by ESI. That means, there is no discrimination as such.
Now coming to the administrative part of payment of salary, I would like to say that the system of paying salary in cash does not exist now. It is paid to your bank account every week. There is no need of employee presenting in person at ESI local office to collect the money.
18th January 2018 From India, Kannur
Dear All, post seeing all the discussion few queries even i have regarding emp benefit in case of ESI coverage.
1. Does employer is liable to pay full salary for 6 months who are having salary more than 21k and out of ESI.
2. If an emp having salary under 21k and joined recently with blessed maternity due within 2 months of joining. WHO will pay the remuneration for 6 months ML.
seeking for reply...
6th March 2018 From India, Mohali
In respect of employees who are not "eligible" to get maternity benefit from ESI, the employer will pay salary for 6 months. In order to be eligible to get benefits from ESI, first of all she should be a covered employee and only persons with less than 21000 salary will be covered by ESI. Secondly, a covered employee should have contributed at least for 70 days in the two consecutive contribution periods. If she is a newly joined employee, she will not get maternity benefit from the ESIC. Now having said that she is not an eligible employee due to the reason that she has not worked/ paid contribution for at least 70 days in the two contribution periods immediately preceding the expected date of delivery, the employer will have to pay salary for the period she absents due to maternity.
Now, as per Maternity Benefit Act only a woman employee who has worked at least for 80 days during the 12 months immediately preceding the date of delivery only will be eligible to get 6 months maternity leave and the medical bonus of Rs 3500. Therefore, an employee who has just 60 days service will not get maternity leave of 6 months.
7th March 2018 From India, Kannur
dear sir
i want to know that how much day are requirement for esi maternity leave, because my esci contributed no of day 211 but my esi benefit maternity state is show no so i am eligibility for esi maternity leave , and tell me how much before day i am gate lever for maternity leave. now i am 7 month pregnant but dr say that give maternity leave certitface before 56 day of deliver that is true
reply as early as possibly
29th May 2018 From India, Anand

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Thanks for Question raised & answers replaying .this is really helpful for understanding the conflicts.
Regards,
Vinod
5th June 2018 From India, Pune
My sister is going on maternity leave in Sept 2018. As per her wages (Rs 15000), till March 2018 she is eligible for ESI Maternity Benefits. But since April 2018 she is out of the ESI wage limits. When consulted with ESI, they told that she is eligible for 15000/- maternity pay from ESI.
Now my question is what about the difference in her present salary( approx 8K), who will pay? Is the company liable to pay the difference in amount, due to the fact that she falls under ESI Maternity Act?
If company is liable to pay that difference, then what about the PF contribution for that 6 mths period, during which she will be on Maternity leave?
10th July 2018 From India, Mumbai
What is the significance of Rs 15000 here? It should be Rs 21000.
If the ESI Corporation is paying the maternity salary for 6 months period, how can the employer pay it? For the ESIC there will be a different computation of average wages payable, but the employer is no way liable to pay the difference amount.
11th July 2018 From India, Kannur
If you are covered by ESI then how can the employer pay salary for the days you remain on leave due to maternity reasons. It will be paid by the ESI Corporation. Fir that you have to consult the Medical Officer of ESI and then submit the relevant certificates to the Local Office of the ESIC
2nd August 2018 From India, Kannur
#Anonymous
Dear Sir/Madam,
I had joined previous company on 01/01/2012, that day onwards i was under ESIC. Till June 2014 I have contributed ESIC. July 2014 onwards my salary hiked. So ESIC amount was not deducted July 2014 onwords. Again May 2017 I have started my Career with another company. They Enrolled me under ESIC from 01/10/2018 with same Registration number. My Delivery Date is April 25th 2019. So till April I will continue my work. Same Registration number using. Can I get ESIC Salary for 24 Weeks. Because new Contribution only 7 months. Will they consider my Old Contribution?
Thanking You
10th January 2019 From India, Bengaluru
The Act says that you should have 70 days contribution in TWO contribution periods IMMEDIATELY preceding the date of delivery. That means you should have contributed for April 2018 to Sept 2018 and Oct 2018 to March 2019. At the same time you have much more contributions in earlier contribution periods. I am not sure whether they will insist for the two contribution periods immediately preceding the date of delivery or not. Therefore, you are requested to see your eligibility using the following link. This is a portal meant for IPs.
ESIC: Portal Application
Madhu T K
10th January 2019 From India, Kannur
#Anonymous
Thank u Madhu Sir for your valuable reply.
In that ESIC portal it shows only 3 months contribution and indicates I am not eligible for benefit. Then What about my old contribution. If it is not considered then why should we renew the same policy number we can generate new number know?
Please reply Sir
10th January 2019 From India, Bengaluru
The old contributions will be taken as service for getting sickness benefits and super specialty benefits to your family.
11th January 2019 From India, Kannur
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