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Can you please advise on below scenario?

1. An employee joins us on March 31 and she did not tell us that she is pregnant.
2. She was pregnant from Feb 1 (60 days) before joining us.
3. When she joined us, she did not tell us that she is pregnant.
4. We did not ask her question if she is pregnant (i.e. neither we asked nor she told herself)

Q1- Is it legal in India to ask questions to female employees “Are you pregnant” ?

Q2- Are the female candidates expected to tell/disclose themselves to new to-be employer that she is pregnant (without new employer asking this question) ?

Q3- In the above scenario (1,2,3,4), are you bound to pay to such employee for 3/6 of payment (as neither we asked nor she told us herself)?

Q4- What if we ask the candidate that if she is pregnant , and she says, she is not. But in fact she is (i.e. she lies to get job). What type of proof (with witnesses) we need to keep as a record in her personal file of this conversation that she told us that she is not pregnant ?

Q5: What medical proof can be asked to find out the exact date of pregnancy ? (i.e. doctor certificate)

Q6- If a female becomes pregnant on Feb 1 with employer X (previous employer) and join us on March 31. Is she eligible for paid leaves from us (i.e. she conceived while she was not working for us)

Q7-Who determines if the paid leaves will be 3 months or 6 months ?
29th September 2017 From India, Thana

Dinesh Divekar
Business Mentor, Consultant And Trainer
Umakanthan53
Labour Law & Hr Consultant
Gopinath Varahamurthi
Mindhour Partner, Ass.professor/adm. Officer,
Bharat Gera
Principal Hr Consultant
Karthik Aptus
Hr Consultant
+3 Others

Dear Appleboycat,

The replies to your questions are as below:

Q1- Is it legal in India to ask questions to female employees “Are you pregnant”?
Reply: - Employment of woman depends on her pregnancy provided nature of her job is hard like lifting weight or working at high-rise buildings as in case of construction workers or case of cabin crew of airlines wherein she needs to work at high altitude and she may not be fit to take such work. In such cases, employer needs to mention medical requirements in Job Description (JD) of the position clearly. Otherwise, there is no need to ask such question. However, alike USA or other western countries, India does not have explicit law that prohibits asking personal question to a job candidate in the selection process.

Q2- Are the female candidates expected to tell/disclose themselves to new to-be employer that she is pregnant (without new employer asking this question) ?
Reply: - No need of disclosure. She can read the JD of her position and find out whether the work can impact her pregnancy

Q3- In the above scenario (1,2,3,4), are you bound to pay to such employee for 3/6 of payment (as neither we asked nor she told us herself)?
Reply: - Every pregnant woman who completes 80 days of her continuous employment, is eligible for 26 weeks of maternity leave. It is incumbent on employer to sanction her maternity leave under the provisions of Maternity Benefit Act, 1961 or ESI Act applicable to the respective state of India

Q4- What if we ask the candidate that if she is pregnant , and she says, she is not. But in fact she is (i.e. she lies to get job). What type of proof (with witnesses) we need to keep as a record in her personal file of this conversation that she told us that se is not pregnant ?
Reply: - Pregnancy, if it does not impact the work, then neither employer need to ask this question, nor job candidate needs to disclose. Pregnancy is the private matter of the woman employee. Please note that barely month before Supreme Court has given a verdict wherein it has told that Right to Privacy is a fundamental right, it is intrinsic to right to life. Click the following link to refer the news about this verdict:

Supreme Court: Right to Privacy is a fundamental right, it is intrinsic to right to life

Please note that right to privacy was enshrined in the constitution of India and Supreme Court has just affirmed it.


Q5: What medical proof can be asked to find out the exact date of pregnancy ? (i.e. doctor certificate)
Reply: - On completion of the first trimester, woman employee is expected to provide certificate from certified medical practitioner (gynaecologist) confirming her pregnancy. If the woman is covered under ESI, Act then certificate is to be obtained from ESI doctor.

Q6- If a female becomes pregnant on Feb 1 with employer X (previous employer) and join us on March 31. Is she eligible for paid leaves from us (i.e. she conceived while she was not working for us)
Reply: - Yes, she is eligible as she has completed 80 days of employment by now. MBA, 1961 or ESI, Act does not mandate that to avail of maternity leave, woman employee must work under the respective employer who will sanction her leave.

Q7-Who determines if the paid leaves will be 3 months or 6 months ?
Reply: - Maternity Benefit Act, 1961, as amended in March 2017 determines whether woman is eligible to get 12 or 26 weeks of maternity leave. For the pregnancy of her first two children, she is eligible to get 26 weeks maternity and from third onward, 12 weeks.

Thanks,

Dinesh Divekar
30th September 2017 From India, Bangalore
Dear Appleboycat,
At the outset, I wish to point out that all your queries stem up from your generalisation that pregnancy of a woman at the time of her recruitment is a bar on employment and the voluntary disclosure of the fact of pregnancy or not with medical evidence is a must. I think it can not be so unless otherwise it is stipulated as one of the conditions by the employer based on the specific nature of the job to which she is to be selected.
If your queries are based on the presumption that by denying employment to a pregnant woman so that the employer can be legally relieved of the burden of paying her maternity benefits under the Maternity Benefit Act,1961, my answer to the queries are 'NO' only.
The MB Act prescribes the conferment of maternity benefit to a women employee only in the event of child delivery or miscarriage or medical termination of pregnancy subject to her actually working for not less than 80 days in the same establishment preceding the date of such occasions.
30th September 2017 From India, Salem
Dear Friend,

A woman knows her pregnancy after 45 days(assuming), the mensuration cycle skipped. Many a woman due to many a reasons might not aware of these conditions, also, confirming the pregnancy and set backs are there in the next 15 to 25 days.

There is no question of telling you about pregnancy and carrying during these period, attending an interview and selected for the post have no connection to the work place with pregnancy. The selection procedure is relevant to the skill, knowledge, academic excellence, work interest etc., neither you certainly interested in the pregnant of the woman nor the woman say about pregnancy is the real transparent interview and selection procedure.

Thus when he completes the training period after six months she is entitled for maternity leave allow her the eligible leave and never loose the candidate for these questions...

Let me Give and clarify some of the issues :

1) When an individual (particular woman) attend UPSC exam and selected for the IAS/IPS/IPS training where as she is found pregnant what will the authorities do at the advantage stage of pregnancy?
2) Woman police officer is found pregnant and found at the 4 month, but, she was selected when she was fit for the post? what will the authorities do?
3) When a woman was selected for a post before marriage in an IT company, she got married and pregnant of three months got posting to the faraway place..she is intelligent, academic well qualified what will the company do?

"Pregnancy is the nature, never these things come across in your selection, the organisation need to rearrange and do not point pregnancy as a debacle" Praise the Motherhood and do not question it? with time and other reasons.
30th September 2017 From India, Arcot
Dear Friend,

Many companies have medical history form to be filled by male & female employees along with the joining report. This form contains a detail about disclosure of pregnancy at the time of joining. The employees are required to disclose their medical details in the form.

Not allowing to join the selected female employees may get the Company into trouble. This has to be done very discretely and smoothly.

You can also create the medical history form (if you do not have already) and make it mandatory part of your employee joining kit.

Mr Divekar and Mr Umakanthan have already given sufficient details.

Warm Regards

Bharat Gera
HR Consultant
9322404765
2nd October 2017 From India, Thane
This is one reason why we get the pre-joining medical examination. Well it is not just for females but for every employee who joins an organization. One must check whether or not the employee is medically fit to join work. This should be the solution for you to keep a record as well as to judge whether or not to continue with the candidate and also as a reference point in case the employee gets unwell at any given time - medical assistance will be easy then.
4th October 2017 From United Kingdom
I would like to add in the checklist of joining formalities (specially for women employees with any of marital status), that we should explain benefits to female employees under maternity benefits Act and other related benefits as per company policy (if any).

i think, the employee herself will realise that if she wants to avail such benefit she should tell fact.


Regards,
Amit
6th October 2017 From India, Vadodara
Q1.It is not legal to ask such question to the women employees.
Q2.Telling about her pregnancy to the new employer is her wish.
Q3.Every pregnant woman who completes 80 days of her continuous employment, is eligible for 26 weeks of maternity leave. If she has not completed her 80 days of tenure you can terminate her with some other reasons. If she is a employee coming under the coverage of ESI then there is no problem for you, The management can advice her to avail the ESI dispensary or Hospitals for benefits.
Q4.In the Application from provided by the company you can have a column as Marriage date by having this column probably you can as questions related to this matter and if she says she is not pregnant you can mark near the date as Y for Yes and N for no. As this a privacy of the women employee you can only maintain records like this.
Q5.You cannot ask her for any medical certificates regarding this matter.
Q6.Ref Ans for Q3.
Q7.Maternity Benefit Act, 1961, as amended in March 2017 determines whether woman is eligible to get 12 or 26 weeks of maternity leave.
6th October 2017 From India, Madurai
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