Navigating Maternity Leave: Can You Help Clarify These Legal and Practical Concerns?

Hi,

We are in the process of setting the Maternity Benefits guidelines for my company. I had a few queries and would appreciate any help that I can get.

My questions are as follows:

1. The law says that an employee can avail of the benefit if she has worked for a minimum of 80 days in the last 12 months of employment. Does this mean that before she can utilize this leave, she needs to be in the company for 1 year? Suppose she joins a company when she is 3 months pregnant, will she get the benefit after 6 months?

Please help me understand this.

2. There are set rules about disbursing the wages/salary to an employee at the time of availing the benefit. It says that we need to give 6 weeks' salary in advance before she goes on leave and the remaining salary for 6 weeks within 48 hours of the lady delivering.

If we make the disbursement in the normal cycle of the company, i.e., month by month, will we be going against the law? Are there any catches here?

3. The law also states that if the lady has a difficult or premature delivery or faces illness during the time of delivery, leave up to a maximum of one month can be granted. Is this leave with pay or without?

4. Some companies are also open to extending the leave for a more extended period (say about 3 to 6 months) than the stipulated 3 months which is unpaid. Should a company continue to pay PF during this extended leave or does that not have to be paid?

It will help if experienced people in this forum help me out.

Regards,

Devangi

Dear Devangi,

1. Yes, if she has worked for a minimum of 80 days, then she can avail the benefit. If you reflect on your example, you will find the answer yourself.

2. Yes, there are set rules, but it all depends on how well the HR has been with the employee; things can be worked out.

3. In case of any difficulty, such as a miscarriage, 6 weeks of leave with pay at the same rate is provided as per the act.

4. Yes, some companies do it, but always remember it is leave without pay. If the employee has enough leave, she can utilize it.

I have been very brief in my reply. For any other issues, you can contact me at [Login to view].

Rakesh

Hi Rakesh,

I have a few queries related to my organization. We have not yet implemented a Maternity Leave Policy as there was no immediate need for the same. But now we do have an employee who is pregnant. My basic concern is the number of days being allocated as leave for Maternity. I have checked with many friends from HR and have received different views on the same:

1. The number of days varies (2 months, 3 months).
2. Is the salary paid based on basic and HRA or full salary?
3. In case the employee is unable to continue her services after delivery, should one month be considered as a notice period for the number of days she has been on leave, or is there any bond to be signed? If so, can I get the format?
4. As per the law mentioned in Devangi's email, what is the applicability, and how does it vary among organizations?

I would request you to guide me and brief me in detail on how to draft the Maternity Leave Policy.

Regards,
Priya

Dear Priya,

The number of days for maternity leave is 81 days. Employees receive their full salary during this period, and there is no bond that needs to be signed. If an employee decides to discontinue, she can do so depending on the company's policy for the notice period.

During the 6 weeks immediately following delivery or miscarriage, no woman is required to work. Additionally, no woman is expected to perform arduous tasks during the 10 weeks from the expected date of delivery. It is prohibited to discharge or dismiss a woman during pregnancy.

For any other inquiries, please send your request via email to "rakeshmishra9@yahoo.co.in."

Thank you.

Hi Rakesh,

I also have a query related to pregnancy leave. Is an employee eligible for paid maternity leave unless she hasn't completed one year with the firm? Please provide me with full details and email me at [Login to view].

Regards,
Nidhi

Hi Rakesh, I have a query regarding Maternity Leave payment. Is it possible for the company to pay the maternity salary after the employee returns from her leave (3 months)? We have faced several instances where employees do not return from their Maternity Leave, yet the company has paid them for these 3 months for no reason.

Creating a Clause for Payment Post-Return

Can we create a clause for payment only after the employee's return following the 3rd month? Would this be legal?

Regards,
HR Team

Legal Compliance in Maternity Benefits

Both of your contentions are illegal. Please remember that the laws have been made to safeguard the interests of the employees and not the interests of the employer. What you are suggesting is entirely against the law. In fact, the laws have been made so that you do not do what you exactly intend to do. The law is there only to prevent you from doing what you want to do, i.e., give the benefit only to employees who return to serve you, disregarding the fact that they may have worked diligently for you for years, and during such a period, they need all help required.

Hope you understood what I intended to convey, and you got all the answers. The law is there to protect the weak and the needy and not to enrich oneself and exploit employees at the cost of their health and impoverishment.

Reflecting on Ethical HR Practices

The best way to find your own answer to such dilemmas is to ask yourself the same question. Had the employee been your own family member, say, mother, sister, or wife, would you still have this doubt about the provisions of the Maternity Benefit Act? Would you still ask if it is legal if the benefits are not paid at that time but only when the employee joins back and continues service?

There is no room to even think of violations of any act, knowingly or purposely. There is no purpose, reason, or qualification for being such an HR who thinks in such a way.

Regards,