How to handle a female employee who was in HR and has already taken maternity leave once after having a baby: She has not come to the office for more than six months and is now pregnant again, demanding another six months of leave. We asked for her doctor's note, which mentioned bed rest, but the report indicated she was fit to travel and everything was fine. Consequently, we informed her via email that we would not be paying her until she attends a face-to-face discussion at the office. She has now sent a legal notice claiming unfair treatment.
According to the law, she can take leave two months before delivery and four months after. However, it seems unfair to the company that she is requesting more leave without returning to work in the office.
From India, Bengaluru
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According to the law, she can take leave two months before delivery and four months after. However, it seems unfair to the company that she is requesting more leave without returning to work in the office.
From India, Bengaluru
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She cannot take maternity leave in continuation of the one she has availed. As per section 5(2), she should have actually worked at least 80 days in the 12 months preceding the expected date of delivery. There are two conditions: 80 days of working and 12 months. Therefore, you may reject her demand for maternity leave, stating that she is not eligible to take maternity leave (the second one) unless these two conditions are satisfied.
From India, Kannur
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4483From India, Kannur
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Eighty days in twelve months condition is applicable only for maternity benefits for confinement, not for sickness arising out of pregnancy.
From India, Thiruvananthapuram
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From India, Thiruvananthapuram
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The case here is the second maternity leave without joining back! The person on leave is asking for maternity leave of 26 weeks immediately after she has utilized the first spell of leaves. It is also presumed that she does not have two surviving children when she asks for 26 weeks leave.
From India, Kannur
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From India, Kannur
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The case needs to be dealt with carefully. Do not reply bluntly; rather, keep silence before you act. There are certain things that need to be read properly. Does the company have standing orders or company rules on absenteeism or conditions of termination, etc., which are vital points that come into the picture at this juncture.
To be eligible for maternity benefits, a woman must have worked for the employer for at least 80 days in the 12 months before her expected delivery date. The suggestion can't be homogenous for all cases. It would be better if you can feel free to discuss at 8093097934 for some insights.
From India, Mumbai
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To be eligible for maternity benefits, a woman must have worked for the employer for at least 80 days in the 12 months before her expected delivery date. The suggestion can't be homogenous for all cases. It would be better if you can feel free to discuss at 8093097934 for some insights.
From India, Mumbai
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Thank you all for your response,
The case is after the first pregnancy, she resigned, but the company's business head requested her to rejoin after 4 months. Since then, she has not come to the office due to some reasons. Initially, the management was understanding, but it became evident over the next few months that she was not performing her duties well from home. Consequently, the management wanted her to return to work in the office, but she kept delaying.
Subsequently, when a new HR professional recently joined the company, the management started exerting more pressure. However, she informed them of another pregnancy. When the management suggested she work as a consultant, she responded via email requesting maternity leave for 6 months, with the plan to return one month after delivery. Following this, the management decided that until she appeared in the office for a face-to-face discussion, she would not be considered an employee, and no payments would be processed until then.
From India, Bengaluru
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The case is after the first pregnancy, she resigned, but the company's business head requested her to rejoin after 4 months. Since then, she has not come to the office due to some reasons. Initially, the management was understanding, but it became evident over the next few months that she was not performing her duties well from home. Consequently, the management wanted her to return to work in the office, but she kept delaying.
Subsequently, when a new HR professional recently joined the company, the management started exerting more pressure. However, she informed them of another pregnancy. When the management suggested she work as a consultant, she responded via email requesting maternity leave for 6 months, with the plan to return one month after delivery. Following this, the management decided that until she appeared in the office for a face-to-face discussion, she would not be considered an employee, and no payments would be processed until then.
From India, Bengaluru
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When a query is posted, please provide the full facts, not in bits and pieces after members give their replies.
The eligibility condition of 160 days in twelve months is very old. This requirement has now been amended to 80 days.
From India, Thiruvananthapuram
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The eligibility condition of 160 days in twelve months is very old. This requirement has now been amended to 80 days.
From India, Thiruvananthapuram
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Hi, please carry out some investigation in her case. She might be working elsewhere and trying to misuse maternity benefits. As Mr. Madhu rightly said, maternity leave cannot be claimed in advance. It is allowed only two months before the expected delivery and the balance 4 months after delivery.
From India, Bengaluru
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From India, Bengaluru
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Let us focus on the eligibility criteria for the ML in respect of the 2nd child. Whether it's the first, second, or 3rd child, the condition that should be satisfied is 'she should have worked 80 days in the preceding 12 months.
Right to payment of maternity benefit. -- (1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day. Explanation. – For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher.
(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit for a period of not less than 80 days (earlier it was one hundred and sixty days) in the twelve months immediately preceding the date of her expected delivery: Provided that the qualifying period of 80 days (earlier it was one hundred and sixty days) aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. Explanation: - For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, the days for which she has been laid-off during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.
(3) The maximum period for which any woman shall be entitled to maternity benefit shall be 26 (earlier twelve weeks), that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day: NOTES. – The term "week" means a cycle of seven days including Sundays; B. Shah V. Presiding Officer, A.I.R. 1978 S. C. 12.
Notice of claim for maternity benefit and payment thereof. -- (1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit. (2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.
Ins. By Act 21 of 1972, S. 3. Ins. By Act 53 of 1976, S. 3. (3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery. (4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her delivery. (5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on the production of "such proof" as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child. (6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order. NOTES. – See also Sec. 50 of the Employees' State Insurance Act, 1948, for conditions under which a woman becomes qualified to claim maternity benefit under this Act. Unquote: Is maternity leave applicable for a second child? All pregnant women are eligible for 26 weeks of maternity leave for the first and second child, out of which they can take a maximum of 8 weeks' leave before their expected delivery date. For the third and subsequent child, mothers are eligible for 12 weeks of maternity leave. The original Maternity Benefit Act provided a leave of only 12 weeks or 3 months. Thankfully, the 2017 amendment has increased this duration to 26 weeks or 6 months. "All pregnant employees can take up to 8 weeks' leave before their expected delivery date and up to 18 weeks after giving birth to their child". My opinion is - Here two conditions have to be satisfied [ i) 80 days attendance during the preceding 12 months; ii) Her notice mentioning the expected date of delivery and the proof thereof. And it can be only 8 weeks ML before the expected delivery date. Depending on the responses a clear position would emerge.
From India, Bangalore
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Right to payment of maternity benefit. -- (1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day. Explanation. – For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher.
(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit for a period of not less than 80 days (earlier it was one hundred and sixty days) in the twelve months immediately preceding the date of her expected delivery: Provided that the qualifying period of 80 days (earlier it was one hundred and sixty days) aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. Explanation: - For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, the days for which she has been laid-off during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.
(3) The maximum period for which any woman shall be entitled to maternity benefit shall be 26 (earlier twelve weeks), that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day: NOTES. – The term "week" means a cycle of seven days including Sundays; B. Shah V. Presiding Officer, A.I.R. 1978 S. C. 12.
Notice of claim for maternity benefit and payment thereof. -- (1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit. (2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.
Ins. By Act 21 of 1972, S. 3. Ins. By Act 53 of 1976, S. 3. (3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery. (4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her delivery. (5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on the production of "such proof" as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child. (6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order. NOTES. – See also Sec. 50 of the Employees' State Insurance Act, 1948, for conditions under which a woman becomes qualified to claim maternity benefit under this Act. Unquote: Is maternity leave applicable for a second child? All pregnant women are eligible for 26 weeks of maternity leave for the first and second child, out of which they can take a maximum of 8 weeks' leave before their expected delivery date. For the third and subsequent child, mothers are eligible for 12 weeks of maternity leave. The original Maternity Benefit Act provided a leave of only 12 weeks or 3 months. Thankfully, the 2017 amendment has increased this duration to 26 weeks or 6 months. "All pregnant employees can take up to 8 weeks' leave before their expected delivery date and up to 18 weeks after giving birth to their child". My opinion is - Here two conditions have to be satisfied [ i) 80 days attendance during the preceding 12 months; ii) Her notice mentioning the expected date of delivery and the proof thereof. And it can be only 8 weeks ML before the expected delivery date. Depending on the responses a clear position would emerge.
From India, Bangalore
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Office Order regarding Maternity Leave for Contractual employee as per Amendment Act 2017.pdf
Maternity Leave Policy - posting.doc