Maternity Leave Benefits: Am I Eligible If I Joined This Year?

I joined a company in May 2011 and will proceed on maternity leave in December 2011. Am I entitled to maternity benefits?

The following conditions must be fulfilled for you to get the maternity benefit under the Maternity Benefit Act:

1. You should not be an "insured employee" under the ESI Act.
2. The Maternity Benefit Act should be applicable to the establishment in which you are employed.
3. You should have worked for 80 days in the establishment of your employer in the twelve months preceding the date of expected delivery. Since you have not provided the exact date on which you joined the services of the current employer and the expected date of delivery, I am unable to determine if you would have worked for 80 days by the expected day of delivery.

Regards,

I think some companies have a policy that requires an employee to have completed a minimum of one year with the company to avail of maternity leave.

Thank you so much, sir, for the prompt response. I joined on 2nd May 2011 and will be proceeding for leave on 10th Dec 2011. I am not insured under the ESIS Act.

Thanks & Regards,
Chanda Sahu

The company's policy cannot be contrary to any law of the land, including labor laws. Therefore, no company can have a policy stating that an employee must have completed one year of service to be eligible for maternity benefits.

Regards,

Please check whether the Maternity Benefit Act is applicable to the establishment in which you are employed.

With regards,
Regards

How can we check whether the Maternity Benefit Act is applicable to the establishment in which we are employed?

Regards,
Prabha Pandey

Applicability of the Maternity Benefit Act

The Maternity Benefit Act is applicable to the following establishments as per Section 2(1) of the Maternity Benefit Act:

1. Factories
2. Mines
3. Plantations
4. Circuses
5. Shops or establishments in which ten or more workers are employed or were employed on any day of the preceding twelve months.
6. If the State Government notifies in the official Gazette that the Maternity Benefit Act is applicable to any other establishment other than those mentioned at S.No. 1 to 5 above.
7. The MB Act is not applicable if the ESI Act applies. However, if an employee exceeds the Rs. 15,000 salary limit and goes out of the ESI Act coverage, she will be covered by the MB Act even if the ESI Act is applicable to the establishment.

With regards,
Regards

What can we do if the company is not willing to give a female employee, who has worked for over one and a half years and is not covered under the ESIC Act, her maternity benefits? Is there any written rule to provide maternity benefits or any regulation passed by law?

Regards,
Prabha

Is the same applicable to Maharashtra state as well? Please let me know where I could find information related to current labor laws in Maharashtra.

Regards,
Dadasaheb

Maternity Benefit Act Provisions

My post referred to above is an extract of the provisions of the Maternity Benefit Act, which is applicable throughout India. A copy of the Maternity Benefit Act is available on Cite Hr. If you search for it, you will find it.

In case the employer is not providing maternity benefits, the option available is to file a complaint with the Inspector under the Maternity Benefit Act regarding the establishment where the employee is working. For factories, it is the Inspector of Factories. For shops/establishments, it is the Inspector under the Shops Act for that specific establishment.

With regards,

Queries Regarding the Maternity Act

I have a couple of queries regarding the Maternity Act:

- A woman can claim maternity benefit if she has worked for a minimum of 80 days in the preceding 12 months. Now, the question is, if the employee was on a probation period of 3 months, will those 3 months be considered for counting the 80 days? What about leave without pay? If that employee has taken a lot of leaves which exceed the leave entitlement, can those leaves be deducted while counting the 80 days?

- The act states that she is entitled to receive maternity benefit at the rate of the average daily wage. What does average daily wage stand for? Are conveyance allowance and special allowance to be paid, and does the employer need to contribute to the PF during that time?

- The act stipulates that the maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, which means six weeks up to and including the day of her delivery and six weeks immediately following that day. Does the employee have the option of not availing the six weeks before delivery and taking the total 12 weeks after the delivery?

- What happens if the employee does not continue after 12 weeks? Can the company claim back the money it paid?

Looking forward to your suggestions.

Thanks,

Priti

Dear Ms. Priti,

Answer to your question (a):

(i) The period on probation must be considered when calculating the 80 days of service. Although not explicitly stated in the Maternity Benefit Act, the explanation to section 5(2) of the Act specifies the days to be included for this calculation. It states that "the days on which the woman had actually worked" should be taken into account, hence the period of probation is included.

(ii) Leave without pay cannot be included as the explanation does not mention leave without wages.

Answer to your question (b): Please refer to the explanation of section 5(1). Average daily wage is defined as the average of the wages payable to the woman for the days she worked in the three months preceding her maternity leave.

Answer to your question (c): Section 5(3) stipulates that the maximum period of maternity benefit before the delivery date should not exceed six weeks. There is no minimum prescribed period before delivery, allowing a woman to work until her delivery date and then take the 12 weeks of maternity leave.

Answer to your question (d): If an employee does not return after the 12-week maternity leave, the company cannot demand a refund of the maternity benefit paid. The Act does not make the payment of maternity benefit conditional on the employee's continued service with the employer.

Regards,