Maternity Leave Dilemma: What Benefits and Salary Are Legally Required?

Dear All,

Our company is a manufacturing company, and one of our female employees is going on maternity leave. I would appreciate it if you could inform me about the benefits she is entitled to and the amount of salary the company has to pay during her leave. Can someone please advise me on what our laws state regarding this matter?

Thank you,
Tweeps

Dear,

If someone has worked for 80 days, then she is entitled to 12 weeks of maternity leave with full salary. If you have not provided any prenatal check-up help, then she is entitled to 1000 rupees as a medical bonus.

Thanks,
JS Malik

Hi, Dear,

If she is included in the ESIC Act, then the company doesn't have to pay maternity claim; she can claim from ESIC. But if she is not included in the ESIC Act, then the company has to pay 12 weeks' salary: 6 weeks before the due date and 6 weeks after the due date of maternity.

Dear Tweeps,

For more details, you may go through the ESI Act, 1948, and the Maternity Benefit Act, 1961, for the grant of maternity benefits to an eligible woman employee.

Regards,
R.N.Khola

(Labour Law & Legal Consultants)
09810405361

Every woman is entitled to get 45 days before the due date and 45 days after the delivery of her child. If covered under the ESI Act, then she can claim the benefit from there; otherwise, during this period, a company will have to pay her full salary. This applies whether the child born is alive or dead, or she had any miscarriage.

Dear Anamika,

It is not 45 days; it is not more than 6 weeks, i.e., 42 days before and 6 weeks after the date of delivery. In case of a miscarriage, it is only 6 weeks.

Thank you.
JS Malik

Dear all,

I want to know details about the provident fund, the percentage paid by the employer/employee, and also those who are responsible if it is not given to the desired employee. Please help me with details, not just the act.

Thank you.

Mr. Chetan,

Mr. Malik Ji is absolutely right. In the case of a miscarriage, only 6 weeks are allowed. For delivery, 6 weeks before the delivery and 6 weeks after the delivery, totaling 12 weeks of maternity leave are applicable.

Hi Malik,

Is it compulsory that maternity leave be taken 42 days before delivery and 42 days after delivery?

Renjini Nair Sr.
HR Officer
Mumbai

If miscarriage occurs, then only 6 weeks of leave are granted. In the case of delivery, the leave period is extended to 6 weeks before the delivery and 6 weeks after the delivery, totaling 12 weeks of leave with full salary provided for the entire 12-week period.

Thank you all for guiding me through. I have 3 questions:

1. In our organization, we provide 3 months of paid maternity leave, and beyond that, it's unpaid. So, during the unpaid leave period, what would be the treatment of PF? Should we mention the gap period or unpaid leave in the challan?

2. We offer an ex gratia amount to employees, as specified in the appointment letter. One of our employees recently went on maternity leave in February, and the management decided to withhold her amount. Is this fair or permissible?

3. Mr. Malik has mentioned that, "If you have not provided any prenatal check-up help, then she is entitled to a 1000-rupee medical bonus." What does the term "help" cover here? Specifically, does it refer to days off or a monetary benefit for prenatal check-ups?

Please assist me in resolving these queries.

Thank you and regards,
Neha

Dear Renjini,

You have not understood the words I have written. It should not be more than 42 days before delivery, which means before delivery, you can take any number of leaves but not more than 42 days. However, the balance can be taken after delivery. I think it is clear now.

Thank you,
JS Malik

Dear Sir,

I am the owner of a small IT company in Haryana with 22 employees. Currently, we do not have any maternity policy in place. My question is: what benefits are female staff entitled to in this regard as per the norms of a private company?

Thank you.

Dear Neha,

Regarding your first question, if salary is not paid for a particular month, then no PF will be paid. Suppose you pay 10 days' salary to an employee in a particular month, then you will deposit PF on earnings, not on the full salary. If there are no earnings, no PF will be paid.

If it is mentioned in the appointment letter, then you should pay ex gratia.

As for the 1000 rupees medical bonus, the exact wordings are: a medical bonus of Rs. 1000 if the employer does not provide free medical care to women, meaning the employer has not provided prenatal checkups.

Thank you,
JS Malik

Dear Swati,

If a female employee is covered under ESI, then all benefits are to be provided by ESI. If someone is not covered by ESI, then all benefits should be given as per the Maternity Benefit Act. A female employee is entitled to maternity benefits if she has worked for 80 days before proceeding on leave. The benefits are as follows:

1. Leave with pay for not more than 6 weeks before delivery and 6 weeks or more after delivery. The total leave period is 12 weeks.
2. A medical bonus of Rs. 1000 if the employer does not provide free medical care to women.
3. An additional leave with pay for up to one month if the woman provides proof of illness due to pregnancy, miscarriage, or premature birth.
4. In the case of a miscarriage, a six-week leave with pay from the date of the miscarriage.

Regards,
J. S. Malik

Sorry, sir,

Actually, here in the forum, only one of the documents stated it's 45 days. Upon rechecking, it is actually 6 weeks. Also, criminal abortion or miscarriage does not entitle one to ESI benefits. Miscarriage will only be considered for benefits when there is the expulsion of the contents of a pregnant uterus at any period prior to or during the 26th week of the pregnancy.

As per the Maternity Act of 1961, a woman shall be entitled to maternity benefits if she has actually worked in an establishment of the employer from whom she claims maternity benefits for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery. Provided that the qualifying period of eighty days aforementioned shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of immigration.

The maximum period for which any woman shall be entitled to maternity benefits shall be twelve weeks, of which not more than six weeks shall precede the date of her expected delivery.

Payment is the monthly salary excluding overtime benefits, incentives, etc.

Benson Mendez
Cochin

Hi,

I have one doubt. Like you have mentioned, "Miscarriage will be beneficial only when the expulsion of the content of a pregnant uterus occurs at any period prior to or during the 26th week of pregnancy." Does this apply even to employees who are not covered under ESI? In that case, is the company supposed to compensate with full salary and 6 weeks of leave?

Dear,

It is made clear that the definition of 'miscarriage' in both the Acts, i.e., under The MB Act, 1961, and ESI Act, 1948, are one and the same. Thus, the woman employee is also entitled to Maternity Benefit for 6 weeks from the date of miscarriage if not covered under ESI and is covered under The Maternity Benefit Act, 1961.

Opinion submitted as requested.

Regards,
R.N.Khola

(Labour Law & Legal Consultants)
09810405361

Dear All,

As already discussed, if a woman is covered under ESI, then the company is not liable to pay any compensation. To be eligible for relief under the Maternity Benefit Act, it is compulsory for the employee to work 80 days during the 12 months immediately before the delivery.

Regards,
Vishal

Malik,

Can sick leave and PL be combined? If it is possible, can you please tell me the reference of the law where it is mentioned?

Renjni

Dear Malik Sir,

Yes, sir, I agree that 6 weeks before delivery and 6 weeks after delivery. If the delivery is delayed by 4-5 days from the expected date, then how will the 6 weeks be calculated before the delivery? Thanks for your kind information regarding maternity leave in the case of a miscarriage.

Regards,
Ashwani Sabharwal

Dear sir,

I had a word with my MD on this, and he told me that our company cannot pay 3 months of paid leave. Ours is a small company with 22 people, including 3 female staff. He wants to know what policies other small-sized private companies are following in this regard.

Please provide some more details on this.

Dear Swati Gupta,

Your unit is employing 25 employees, including 3 women employees. You are covered under the ESI Act, 1948. In that case, maternity benefits are to be given by the ESI department. If the women employees are out of coverage, then you are required to give at least the bare minimum benefits to the concerned employees under the MB Act, 1961.

Regards,
R.N.Khola

(Labour Law & Legal Consultants)
09810405361

Dear Mr. Khola,

As Mr. Malik has guided earlier, if any female employee is covered under ESI, then all benefits are to be provided by ESI. If someone is not covered in ESI, then all benefits are to be given as per the Maternity Benefit Act. A female employee is entitled to maternity benefits if she has worked 80 days before proceeding on leave. The benefits include:

1. Leave with pay not exceeding 6 weeks before delivery and 6 weeks or more after delivery, totaling 12 weeks.
2. A medical bonus of Rs. 1000 if the employer does not provide free medical care to women.
3. An additional leave with pay for up to one month if a woman shows proof of illness due to pregnancy, miscarriage, or premature birth.

I informed my MD about the above points, but he straightforwardly told me that he is not willing to pay for 3 months and the medical bonus as we are not covered under the ESI Act.

What should I do now? Should I convince him to follow the correct procedure according to the Maternity Benefit Act or should I design a policy based on his instructions?

Regards

Dear Swati Gupta,

Your unit is employing 25 employees, including 3 women employees. You are covered under the ESI Act, 1948. In that case, maternity benefits are to be provided by the ESI department. If the women employees are not covered, then you are required to give at least the bare minimum benefits to the concerned employees under the MB Act, 1961.

Regards,
R.N. Khola
Sr. Associate
Skylark Associates, Gurgaon (Haryana)
(Labour Law & Legal Consultants)
09810405361

Dear Swati Gupta,

You cannot/should not make such a policy that is against the law. You have done your duty and have tried your level best to raise awareness regarding the implementation of the M B Act, 1961. Now, it is up to the woman employee who wants to avail of the Maternity Benefit to approach the Labour Department Officers of Haryana.

Regards,
R.N. Khola

(Labour Law & Legal Consultants)
09810405361

Hi sir,

Can you please tell me if these 42 days before and after delivery include weekly offs too?

Dear Neha,

Yes, the benefit is for a specific period and thus includes the weekly off days as well.

Regards,
R.N. Khola
(Labour Law & Legal Consultants)
09810405361

Hi, is it mandatory to provide miscarriage leave as per the Maternity Leave policy?