Labour Law & Hr Consultant
Insolvency N Gst Professional
Padma Jha
+1 Other

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Hello everyone, Please give some clarity on this matter. Currently I am experiencing maternity and my delivery due date is in Sep-20. Today my company HR has told me that I need to avail my maternity leaves prior to 8 weeks from the due date of delivery i.e from July-20. However, I do not wish to avail it this much early. Currently, I am completely fine without any complications and I wish to save my leave for later days post my delivery for me and my baby care, but they are already accounted my leaves under maternity from July-20. What should I do?
From India, New Delhi
The HR's view that Maternity Leave can be availed of 8 weeks prior to the expected date of delivery and the remaining 18 weeks after delivery is correct as per sec.5(3) of the MBA,1961. But the employer cannot insist on this point. It is the choice of the employee either to avail it in two spells before and after delivery or avail the entire 26 weeks right from the date of delivery in a single spell. Ask the HR to revise the orders, if any he issued already.
From India, Salem
Sec"5. Right to payment of maternity benefit
3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery.
This wordings in itself makes it clear that she can take lesser than 6 weeks before delivery at her choice.She can very well work till date of delivery and avail full leave afterwards.

From India, Pune
Do MB Act says that 26 weeks leave can be availed from date of confinement? Which section ?
From India, Thiruvananthapuram
The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:
law says not more than 6 weeks before delivery date.
That means she can take lesser number of days,even 1 or 2 days prior to delivery.
Then rest of leave will obviously be after delivery,

From India, Pune
My question is not answered. It is 26 weeks 8+18 .Not 12 weeks.
From India, Thiruvananthapuram
Dear Mr.Varghese,

Perhaps by oversight, Mr.Rao has mentioned pre-amendment figures. Any way, it doesn't alter the content of the answer to your query whether the entire maternity leave can be availed of at a stretch from the date of delivery. You can make a critical analysis of sec.5(3) of the MBA,1961 in this regard.

The point of reference for the benefit of leave of absence from work due to maternity is the expected date of delivery or the actual date of delivery. Availing this benefit before or after delivery is an exclusive choice to be exercised by the employee depending on her health condition. The limit on the pre-delivery leave of absence is only in recognition of pre-natal issues likely to be faced by an expectant mother and not to curtail the extent of her post-natal leave. Above all, I hope that you'll agree with me that a provision of a social security labor legislation like the MBA,1961 should be interpreted in a way that is more beneficial to the employee only.

From India, Salem
Thank You sirs.
I had requested my HR that I wish to take entire 26 weeks of Maternity benefit post my delivery or wish to start my Maternity leaves only a week before delivering the baby. However, they said it is company's policy to send a women on Maternity leaves, 8 weeks (2 months) prior to the delivery and 18 weeks (4 months) post delivering the baby.
I am surprise by such policy of a company who forcefully send a women to go on maternity against her wish. How can a company play with government laws without thinking of women and her baby's welfare post delivery, which require utmost care. Also, there is no crèche facility in my office. How can a female employee leaves her four months old baby at home without breastfeeding for atleast 9-10 hours. How can they do not think of basic requirements of an infant post delivery.
We employees always come under the awful pressure made by superiors sitting at the top because we cannot fight with them in fear of loosing our jobs.

From India, New Delhi
Dear Padma,

Though expressed with a negative note of frustration, what you have said is absolutely correct. No policy of an employer, be an MNC or a small entrepreneur, can run counter to the provisions of any law applicable to his establishment.

When an employer abruptly refuses to understand this legal position and the HR Manager also fails to convince the employer but rather acts simply as " His Master's Voice ", of course, the affected poor employee can get redress only by making a complaint to the enforcement authority concerned under the particular law. But, eventually it may cost the job of the employee on some other reasons for the employer is always a superior party of the contract of employment.

Therefore, any such affected employee should try to be more rational than emotional in such a precarious situation. After all, you are asked to go on ML exactly 8 weeks before the EDD, that's all. Who knows, the delivery may happen earlier! In such a situation, you will have to be allowed the balance leave after delivery. In addition, on proper medical evidence, you are also entitled to one more month's paid leave as per sec. 10 of the MBA, 1961.

My suggestion, therefore, to you, would be to take the 8 week leave before delivery as your employer insists and avoid unnecessary confrontation and consequential worries as of now.

From India, Salem
Yes sir, you have said very right words. Thank you very much for your suggestion. I have accepted my leaves and will see my other concerns later in future.
Once again, I thank to everyone for leaving your thoughts here.

From India, New Delhi

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