Navigating Maternity Leave: Is Our Employee Eligible for Benefits After Extended Leave?

Dear Seniors,

We have a situation in our company. An employee (designation - Project Leader) has been on leave since mid-December due to health conditions. It all started by availing 1 week's leave due to the confirmation of pregnancy. Her doctor advised her bed rest, so the company gave her leave for a week. Now this leave has been extended until almost the last week of March. (Please note that there is no sanctioning of leaves taken until March.)

She then sends emails related to her joining back the office on 1st April on a half-day working basis, that too again if her doctor says okay. The company advised her to take complete rest due to health conditions and also because there was no work/project assigned to her.

She has worked from home for around 8 to 10 days in December, which was sanctioned by her HOD. She now wants to claim her Maternity benefits and also the work-from-home salary.

Is she eligible for maternity benefits now? Please advise.

Regards,
Anuradha

Dear Anuradha,

She is not eligible for Maternity benefit. As per the Maternity Act, a lady worker is entitled to leave before six weeks of delivery and after six weeks of delivery. Therefore, she is not eligible for Maternity benefit.

Regards,
Ranvijay
Patna

Hi Anuradha,

As per the Maternity Benefit (Amendment) Bill, 2007 passed by the parliament, the maternity leave to be given to a woman who is pregnant is up to 12 weeks, say 3 months. If she is ill after the delivery of a child, she is entitled to an additional 1-month leave with wages. If she miscarries, then she is entitled to another 6 weeks, i.e., 1 1/2 months of leave. All these leaves are with wages, not on loss of pay.

Furthermore, the employer has to pay a medical bonus of Rs. 1000.00 towards her medical expenses.

The act covers all employed women in factories, mines, circus industry, plantations, and shops and establishments employing 10 or more persons, except the employees covered under the Employees State Insurance (ESI) for certain periods before and after childbirth, and provides for maternity and other benefits.

If your company is covered by ESI and the said lady you were referring to is covered by ESI, then the ESI organization shall take care of the payment of all maternity benefits such as payment of wages for the leaves to be granted as cited above. The employer only has to pay the Medical Bonus of Rs. 1000.00 in total, and the woman you have referred to has to get a check-up from ESI Hospital doctors, obtain leave from ESI doctors, and submit a copy to the employer. When she joins duties, she has to get the discharge form leave certificate from ESI Doctors and submit the same to the employer.

In your case, you have to pay the wages for all the periods she was on leave as advised by her doctor for taking bed rest and certified, as you said. The leave period is also within the permitted leave to be granted to a pregnant woman. However, she is in the early stages of pregnancy, so she has to go on loss of pay if she wants to take leave at the time of delivery period, i.e., before and after delivery, as per the rules of maternity. If she gives you in writing that she would not insist on leave with wages at the time of delivery, before and after, then the employer can sanction leave with wages for the stipulated leave schedule as per the maternity rules cited above and stop paying the leave wages at the time of delivery.

Any decision by the employer has to be in the orbit of natural justice. After all, we are human beings and we have to act accordingly, not too tough with the employee as they are the human capital of any organization.

Mohan Rao
Manager HR

Dear Anuradha,

After explaining the situation, you have asked for our advice on the payment of maternity benefits to your Project Director. I would like to suggest that if the Maternity Benefit Act, 1961 is applicable to your unit and the employee has worked for actually eighty days in your unit, then she is entitled to have the maternity benefit from you. For more details, you may also go through section 5 of this Act to make a decision on the matter.

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

I assume yours is an IT company and covered under S&E Act. Hence, as rightly said above, she must complete 80 days in your company to be first eligible for any benefit under MBA. I assume she fulfills that.

Second, against any leave she takes prior to confinement, you must adjust that against her quota of annual leave, sick leave, casual leave, etc., as per the leave rules of your company. For any excess leave, you must put her under Leave without Pay/Loss of Pay mode.

Please start her Maternity Leave (ML) from the day she informs you in writing, on the commencement of the same. And yes, do not forget to start her salary too, until she completes the ML period.

Best wishes

Dear Anuradha,

Of course, your query is incomplete. When she delivered a baby is not mentioned in your query. If she has worked more than 80 days in your organization, then she will be entitled to maternity leave of 12 weeks, out of which not more than 6 weeks' leave can be availed before the delivery of the child.

Regards,
JS Malik

Most foolish comment I have ever come across in CiteHR.

Dear Friend,

Are you working in the HR Dept. or some other department? If you are in HR, please do not give such utterly foolish opinions in public. You will land yourself and your employer in a problem. Denying Maternity Leave is a punishable offense.

Please STUDY the Maternity Benefit Act.

Hi,

I agree with Mr. Khole, Prasenjit, and Malik. She has worked for the preceding 80 days in the organization, so we will have to give her the maternity leave. If anyone would like to shed more light on this issue, please do so. Thanks a lot for all your advice.

Regards, Anuradha

Dear Raj Kumar,

I don't think Ranvijay mentioned something wrong. In fact, he mentioned that the LADY is eligible for 6 weeks before the delivery and 6 weeks after the delivery. Maybe he did not understand the query.

The query was a bit unclear even to me. I thought the lady was claiming the leave she took from December (the start of her pregnancy cycle) until March as maternity - which is not possible. Assuming that the due date should have been somewhere between August and the first week of September - I guess so... She must have been one month pregnant in December...

So she should have taken leave already in July or August.

The query is confusing. As Mr. Malik has pointed out, there is no info on whether she has delivered or not.

Ranvijay is aware of the maternity benefit. Just like how I got confused - even he must have.

It's a kind request to not make one feel bad for posting their query here - unless and until it calls for that. I urge you to read the post by Ranvijay, where initially he did state that she can't avail (because he thought she was claiming for it much earlier than the actual recommended), and later he even clarified it stating that only 6 weeks prior or before delivery can the leave be taken.

(It's better to react after reading things at least twice - I am no better though, but no harm in suggesting)

Hi,

I have gone through your query and the comments posted by our colleagues on this platform. Please find my comments below:

1. According to section 5(2) of the MBA, one must fulfill the eligibility requirement, i.e., 80 days of work immediately before the expected delivery date. Based on this, I presume that she has not worked for the specified period, assuming her expected date of delivery was August 2009, as she confirmed her pregnancy in December.

2. Assuming she has not been terminated or dismissed from employment, she is entitled to return to work after six weeks from the delivery date, even though she has been on leave since December.

3. As per section 10 of the MBA, she can take one month of paid leave in addition to maternity leave. Therefore, you will need to provide paid leave for one month under this section and not under section 5 (Maternity Benefit) as she does not meet the preconditions for that.

4. Regarding her approved work-from-home arrangement, you must pay her salary for that period as if she had reported to work.

Apart from the payments mentioned in points 3 and 4 above, you may allow her to take leave without pay.

I hope this resolves your query. I have attached the MBA for your reference (possibly an older version).

Hi Raj Kumar Hansdah,

In view of your comments (publicly made) for Mr. Ranvijay, I suggest and expect, one must do an analysis before putting any opinions/comments (using harsh words) etc. In the case of Ranvijay's view on this thread, it might be possible that he is aware of the law and accordingly in his mindset, he was clear that the employee must qualify the precondition set out by the MBA and thus commented his views in a shortcut.

To do an analysis, one must step into the shoes of the other person and think, why he has answered so? Try to find out support for that, e.g. study the ACT, etc.

I suggest we should provide our views/comment professionally, try to avoid hurting anyone on his/her comments. I do agree that there are persons who just make fun of the platform, ignore the seriousness, etc. In such instances also, one should address them properly so that they become serious about the issue instead of hurting them.

The best way to deal with this is to convey your views, analysis, and then seek clarification from the other person, understand why he has replied so, and then convey your views in a positive manner. Because, sometimes it may be possible that fresh executives might be trying to run quicker.

I personally believe and, moreover, the law believes that every citizen knows the law and needs to abide by the same, failing which they have to face the consequences.

Thus not to worry if you are a law-abiding person.

Regards,

Dear,

We should have a healthy discussion. If someone gives an answer that goes against the law, we should guide them, and we should not hurt anyone.

Regards,
JS Malik

My dear Balvhatkar,

Thanks for your comments and suggestions, which are definitely good and praiseworthy.

However, regarding my earlier post, I had to intervene harshly to prevent a situation where the person who posted the query may commit an illegal action based on Mr. Ranvijay's suggestion and would have landed herself and her company in trouble.

If P gives Q a very dangerous and illegal suggestion in your presence, what will you do?

Will you happily become an accessory to a crime and let Q do something illegal by acting on P's suggestion?

Kindly do your analysis and answer me.

For your kind information, ask any lawyer for confirmation, and he will agree with my views.

It was very clear from Mr. Ranvijay's post that he is not aware of the provisions.

If we do not know the date of delivery, we are not sure about the dates regarding Maternity Leave. But the lady is still entitled to Maternity Leave Benefits, which are enshrined in the Act, and the Government of India guarantees it.

Pardon me, but it seems you yourself are not aware of the law.

Do you know that Maternity benefit is applicable whether a person has delivered a child, had a miscarriage, or had MTP? This implies that once pregnancy is confirmed....

Secondly, just a question to test knowledge of Maternity Benefit: Can you answer me if an unmarried woman or a widow can get Maternity Leave under the Act or not?

Regards.

Dear Malikji,

Thank you for your posts, which are always full of knowledge and learning, benefiting everyone. I agree that we should not hurt anyone, but it is strange to find people defending wrong answers and refusing to accept what is correct.

The basic criteria in the Maternity Benefit Act are pregnancy and its confirmation by a doctor. Once a female employee has conceived, it is just a matter of "time." Whether she delivers or has a miscarriage, she is entitled to Maternity Leave. The only variable is the period, depending on the actual date of the occurrence of the event.

Regards.

Dear Raj Kumar,

Maternity leave is applicable whether a person has delivered a child or had a miscarriage or MTP (this is with reference to your reply to balvhatkar).

But here is what people wanted to know: when has this lady claimed maternity leave? After delivery? Or weeks before delivery?

The person who posted this query has probably gotten confused because, "Already this lady has taken a lot of leave - so should she be eligible for maternity benefits anymore?" I guess that's what Anuradha had asked. That's how I understood her question, and I am sure she got it clarified - yes, she is eligible for maternity leave because it's the date of delivery (prior & post which is calculated for maternity leave) that is considered.

I know a popular school in India that gives a lady teacher maternity leave one month before the delivery date - and ONE YEAR LEAVE after delivery (with three months of paid leave).

It's because the school believes that the mother needs to be with the child for a year so that the child does not fall sick often, forcing the mother to take leave in between.

I mentioned this because, though the law exists, it may tend to vary (though no one would take the risk of not giving, but maybe give extra leave).

I believe the forum here is to discuss & help one another, not to have a battle over "Look who knows better!"

I don't understand the relevance of your last lines in testing someone's knowledge. Why?

Dear Balvhatkar,

Notwithstanding my earlier comments (voicing myself against a wrong opinion), I must say that you have done exceedingly well in resolving the query despite certain key information missing. That is where experience counts. One tries their best to reconstruct the sequence based on certain data assumptions, as you have done. Also, you have correctly remarked that if she is permitted to work from home, she is eligible for salary for that period, and the rest of the period shall be leave without pay (or paid leave if she has sufficient leave balance to her credit).

It is fairly standard now to give one year (unpaid) leave, especially in government and PSU sectors, after maternity leave, which is aptly called CHILD CARE LEAVE.

Regards.

Dear Ash,

My para-wise reply, in Red.

Anuradha,

Can you send us the details like:
1. Date of joining your services
2. Date she intimated her pregnancy
3. Leave availed (including LWP / loss of pay leaves)

Dear Rajkumar Hansdah,

I offer my apologies to all. I had no intention to hurt anyone's sentiments. My intention was very clear - to resolve the query and, at the same time, to convey that we should engage in healthy discussions on this forum, as suggested by Malikji, and avoid using harsh words when expressing opinions. I agree with you that someone may have provided incorrect information, and relying on it could be harmful to the person depending on it.

However, I believe Anuradha is mature enough to analyze different opinions and form her own view on the course of action.

My sincere request to all colleagues on this platform is to "PUT YOUR QUERIES VERY SPECIFIC AND CLEAR," providing details at the initial stage, as Trinity has requested here. More details enable us to provide more authentic analysis and opinions rather than basing them on presumptions and assumptions.

ANURADHA: I think you need to add a concluding paragraph to this thread.

Regards,
Balkrishna

Hi All,

I also have a similar query here. Please share your opinions:

We have a part-time employee who comes for only 2 hours a day. She is on Maternity Leave from June 09 to Aug 09 (three months). Now she wants to extend her leave by two more months by adding her pending PL's/EL's, and we also know that she will definitely leave the job after availing her leave as it's her 2nd child, so she does not want to continue with the job.

My questions:
1) Are maternity leave benefits applicable to part-time employees?
2) Can she combine ML with EL?
3) Being a part-time employee, does she deserve EL and appraisals?
4) Does the leave policy remain the same for part-time and regular employees?

Thanks,
Vineet