Understanding Maternity Leave: How Much Pre-Delivery Leave is Legally Required?

Hi,

I work for an IT company with 160 employees. As per the maternity act, 6 weeks should be given after delivery and 6 weeks before delivery. However, here, women employees do not take even 1 month of leave before delivery. They request to add the leaves after delivery.

Can someone guide me on how many days of leave are mandatory for a female employee before the delivery date, as per the law?

Thanks,
Sonia

It is not mandatory that six weeks' leave should be taken before the date of delivery. One can take the entire 12 weeks of maternity leave after delivery. An employer cannot insist that she should take 6 weeks before delivery because it is only the 'expected date of delivery', and that may change. If the Act is interpreted as 6 weeks before and 6 weeks after delivery, there may arise a situation where a woman may only get 6 weeks since delivery may take place even prior to the expected date of delivery.

Regards,
Madhu.T.K

Since I am framing a policy, can it be mentioned in the maternity leave policy that it is mandatory for the female employee to take leave before 20 days of the delivery date or at least before 15 days, since it can be risky if they stay back to work? This can be done to avoid any kind of legal problems.

Some of the employees do not take leave until the last date; they come on their own will. But I don't think the company should take any kind of risk. What can be the appropriate wordings for this policy?

Please advise.

Thanks,
Sonia

Hi Sonia,

I agree with Madhu completely. You cannot force a female employee to take 6 weeks of leave before delivery. However, the policy can state that 6 weeks of leave can be taken pre-delivery and the remaining 6 weeks post-delivery. The policy should be flexible enough to allow the female employee to take the entire 12 weeks of leave post-delivery as per the requirement.

Dear Sonia,

You can always advise pregnant employees to avoid hard work or work involving long hours of standing or overstaying. It is also provided in the Act (Section 4(3)). However, you cannot make it compulsory for anybody to take at least 15 or 20 days leave before delivery because it is only the expected date of delivery, which is likely to change as well. As an employer, you just have to ensure that she is not given any hazardous work, especially during the six months before the expected date of delivery.

Please be informed that for a miscarriage, six weeks of leave are permitted under the Act. Similarly, for sickness arising out of delivery, one month of additional leave with salary is to be given upon the production of proof thereof.

Regards,
Madhu.T.K

Dear Sonia,

I think before framing a policy for your company, why don't you go through the act once? The link below provides it online: [Laws - The Maternity Benefits Act, 1961](http://www.vakilno1.com/bareacts/maternitybenact/maternitybenact.htm)

Regards,
Priya

Hi,
Pls read the following facts about Matrnity Leaves. Hope will solve ur querry.
Maternity Leave
If you are a pregnant employee, you are currently entitled to 26 weeks' Ordinary Maternity Leave, followed by a further 26 weeks' Additional Maternity Leave – one year in total. As long as you give the correct notice to your employer, you can take this regardless of how long you've been working there, how many hours you work or how much you are paid. For more information, see the Government's <link outdated-removed> ( Search On Cite | Search On Google ) leaflet for employees.

All employees are entitled to a minimum of two weeks' maternity leave (four weeks for those who work in factories) immediately following the birth.

Before taking maternity leave
To take maternity leave you should inform your employer no later than the end of the 15th week before the week the baby is due (or as soon as is reasonably practicable) that: you are pregnant; when the expected week of childbirth is; and when you want your maternity leave to start. Your employer must then let you know within 28 days, what date your maternity leave will end on.

You can choose when to start your maternity leave. This can usually be any date from the beginning of the 11th week before the week the baby is due. You can change this date as long as you give your employer 28 days' notice.

During maternity leave
Your employer may make contact with you (and vice versa) while you're on maternity leave, as long as the amount and type of contact is not unreasonable, to discuss a range of issues – for example, to discuss your plans for returning to work, or to keep you informed of important developments at your workplace. You should also be kept informed of any relevant promotion opportunities or job vacancies that arise during your maternity leave.

You can work for up to 10 days during your maternity leave, under your contract of employment, as long as both you and your employer agree on what work is to be done and how much you will be paid for it.

Returning to work
You can change the date of your return to work as long as you inform your employer eight weeks in advance. If you decide not to return to work at the end of your maternity leave, you are entitled to continue to receive your full amount of statutory maternity leave and pay. You must give your employer at least the notice required by your contract or, where there is none, the statutory notice.

All women have a right to return to work after maternity leave, regardless of the size of their employer's company.
Whether you are eligible for Statutory Maternity Pay (SMP) will depend on a variety of factors, such as your length of employment and your salary. To qualify for SMP you must have been:

• Employed by the same employer without a break for at least 26 weeks by the end of the 15th week before the week your baby is due. Part weeks count as full weeks.

• Earning before tax an average of £90 a week. This is called the Lower Earnings Limit for National Insurance Contributions (NI) and is the amount you have to earn to qualify for benefits. You have to earn more than this amount before you actually start paying NI.

SMP is paid for a continuous period of up to 39 weeks. For the first six weeks you will be paid 90 per cent of your average weekly earnings with no upper limit. For the remaining 33 weeks, you will be paid a standard rate of £ per week or a rate equal to 90 per cent of your average weekly earnings (whichever rate is lower). To read more about SMP, go to: NI 17A - A guide to Maternity Benefits.

You may find that your company has its own maternity policy, which is better than the legal minimum. So your entitlements could differ to those of your colleagues or friends who work for other companies. Find out exactly what you might be entitled to by contacting:

• your human resources or personnel manager
• your trade union representative
• your local Jobcentre or Benefits Agency (you will find the telephone number in your local telephone directory).

You should also look in your contract of employment and see what it says about the company maternity policy.
Rgds

Dear Sonia,

The total amount of leave for a female employee under the Maternity Benefit Act is 84 days, i.e., 12 weeks. If the respective employee is only availing 1 month of leave before delivery, this indicates that she is able to bear the stress. The remaining leave can be taken during the post-delivery period, up to a maximum of 84 days, including the leave taken before delivery.

Thank you,
Amit Anand Gera

Dear Sonia,

Whatever I had explained is in the Indian context with the impression that you work in India and the Maternity Benefit Act, 1961 is applicable to your firm. If your company is in a position to provide better facilities and longer leave than the 12 weeks as per our Act, or the 52 weeks leave as suggested by bhagwan_07 (I understand that the text he quoted pertains to the UK), you can opt for that.

In the Indian Act, a woman employee is required to serve notice of pregnancy and her expected absence from work. This notice should be given not earlier than 6 weeks before her expected date of delivery. The notice should also be given soon after delivery. However, subsection 6 of section 6 states that failure to give notice shall not disentitle a woman from maternity benefits.

I would like to add one more thing. If any amendment is made to provide 52 weeks of leave to women as maternity leave, there may be hardly any employer who will prepare themselves for recruiting women!

Regards,

Madhu.T.K

Dear Sonia,

There is absolutely no danger to the expectant mother as long as she follows certain basic safety rules. Personally speaking, I worked until the last minute before the delivery, and I used to travel on my own too. I availed all the leave after the birth of my child. The Maternity Act states that the leave can be availed to the extent of 12 weeks; that's it, nothing else. Most working moms prefer to avail the leave after delivery as the baby needs the mother most at that time. If there are no birthing complications, why not avail all the leave after delivery?

Regards,
Nancy