Can Employees on Probation Get Maternity Benefits? Seeking Guidance on Eligibility

Maternity Benefit for Employee on Probation

Dear Seniors,

I would like to know if maternity benefits could be given to an employee on probation. One employee joined us in Aug. 09, and now she is asking for maternity benefits. Is she eligible for maternity benefits as she is on probation and is supposed to take leave in Dec. 09?

According to the Maternity Benefit Act, it states that a woman shall be entitled to maternity benefits only if she has actually worked in the employer's establishment for a period of not less than eighty days in the twelve months immediately preceding the expected delivery date (section 5[2]).

Now, it is mentioned 80 days in the 12 months. Seniors, please guide me.

With regards,
Deepmala

Deepmala,

The law states that employees who have served for a minimum of 160 days on the date of commencement of leave would be eligible for the Maternity leave benefit. It does not make any distinction between the status of the employee, whether as a probationer or a confirmed employee. However, given that the date of joining is in Aug '09, I don't think she is eligible for the benefit. Also, the act specifies that the leave can only be taken for a period of 12 weeks, i.e., six weeks prenatal and six weeks postnatal.

Hi Deepama,

Please refer to the following points:
Who is Entitled to Maternity Benefit

1. Every woman employee, whether employed directly or through a contractor, who has actually worked in the establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery, is entitled to receive maternity benefit.

2. The qualifying period of 80 days shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of immigration.

3. For calculating the number of days on which a woman has actually worked during the preceding 12 months, the days on which she has been laid off or was on holidays with wages shall also be counted.

4. There is neither a wage ceiling for coverage under the Act nor any restriction regarding the type of work a woman is engaged in.

Dear,

As submitted by Deepmala, now the eligibility condition is 80 days instead of 160 days as mentioned by you. A probationer is also entitled to have maternity benefits as per the definition of a woman as shown in section 3(o) of this Act.

R.N.Khola

Thank you all for your prompt reply. However, my question is: the employee has not worked for 12 months; she has just completed 4 months. The law states a working period of not less than eighty days in the twelve months, which means that it is applicable to those who have worked for at least 12 months. Please clarify my doubts.

She is eligible for maternity benefits because, as you have stated, she has worked for four months - 4*30 = 120 days. If she has worked for 80 days, she is entitled to receive maternity benefits as per the act.

Dear Deepmala,

If, suppose, she has completed 80 physical working days so far from August 09 (to say), leave starts from December 01-09, then she is eligible as per the act! Hope it is clear to you, ask in case of doubt!

As per the act, she is eligible for Maternity Benefit. For further clarification, please refer to the act.

Dear Mr. Ravi Shankar,

Mr. Ravi Shankar was absolutely right. I once faced a situation similar to yours, and we followed Mr. Ravi's advice. I suggest you review the Employee Welfare policies and strive to do your best.

Thank you.

Dear Ravishank and others,

We may have different points of view about what is right or wrong, but when someone has asked a specific query, it's better to give a correct answer rather than giving an opinion; otherwise, the thread unnecessarily turns into a debate. You can always start another thread to discuss and debate matters.

Regards,
Shikha

Dear Seniors,

Please clarify the below-mentioned query. I could not understand what exactly Mr. Ravi is saying, but I think there is a point in his post.

Waiting for the seniors' reply in this regard.

UDAY

Ravishank wrote:
"But my question is if the women had to get pregnant, then why did she join the company? Just to avail maternity benefits? Because in today's world, couples plan their baby. So obviously, the woman might have planned her baby. If she had planned her baby, then why did she join your company? Kindly counsel with her, and you might ask her to resign and hire another employee as a replacement. The company is running to make profits and not just to provide maternity leave to employees.

It is another point that the woman was working in your company for 1 year, and now she is demanding maternity benefits. She has worked only for 4 months, and there is no guarantee that she will return after pregnancy as she might need to take care of the baby. So obviously, you will be wasting a lot of money on her. It would be better to counsel with her and let her resign from the job. I believe maternity benefits should be given only to women who work for a long time, like 1 year or so.

Now, the above reply was not legal, but going legally:

If we analyze the Maternity Benefit Act carefully:

ELIGIBILITY FOR MATERNITY BENEFIT:
A woman shall be entitled to maternity benefit only if she has actually worked in an
establishment of the employer for a period of not less than eighty days in the twelve
months immediately preceding the date of her expected delivery (section-5[2])

MAXIMUM PERIOD OF MATERNITY BENEFIT: Maximum twelve weeks of
which not more than six weeks shall precede the date of her expected delivery (section-
5[5])

i.e. six weeks prenatal and six weeks postnatal:

Now, extracting points to make it simple:

A woman has to work a minimum of 80 days as one eligibility, and another eligibility is she needs to be a minimum of one year in the company from the expected date of delivery.

So, as explained by one member, she will get 6 weeks prenatal and 6 weeks postnatal, taking into consideration days we get as 6*7 = 42 days prenatal and 42 days postnatal.

So, if the employee is planning to take leave from XX date, then the employee has to be in employment for a minimum of 365-42 = 323 days old in employment from the date of her taking leave. I don't know how so many senior HRs failed to notice this very important point of law because each and every sentence, clause in law has a hidden meaning, and our Indian laws are most confusing. You need to carefully analyze each and every clause."

Hi,

I have one query on the same matter. Please help me. My case is: My female employee has been working for the past 10 years and has not had any children in the last 8 years. Now, she has decided to take care of her sister's newborn baby, who is just 15 days old, and she wants to take three months' leave. She hasn't asked for maternity leave. Instead, she is using her own leave and marking the remaining time as absent.

I would like to know if there is any clause or way to provide her with this benefit.

Shubhra

Dear Mr. Ravishank,

Answer to your first question is very plain and simple. Pregnant employees also have the right to work and earn. Moreover, like every employee who is entitled to a salary, holidays, leaves, and other benefits, female employees are entitled to get maternity benefits.

Secondly, maybe the employer should have been more cautious while selecting a new employee to check the possibility of a maternity break in the near future. Some employers do pay attention to this point in their pre-employment medical checkup. But, mind you, rejecting a candidate for such a reason will amount to discrimination against women and can attract punitive action against the employer.

You cannot ask an employee to resign because she is pregnant. Clearly, your views are chauvinistic and biased. Just like you get a leave when you are sick or to attend a marriage, female employees are entitled to get maternity leave/benefit, irrespective of whether the maternity was planned or not.

Though we are not fully aware of the facts and circumstances of this case, it is possible that she was employed elsewhere before, and the new employer offered her a job for the specific skills and experience she possessed, which were urgently needed by the employer and hence overlooked the fact that she may need a maternity break after 6-8 months.

It is also possible that the female employee was badly in need of a job and salary to support herself and her family and chose to take the hardship of the job despite being pregnant.

Asking an employee to resign is totally out of the question, and she should get maternity benefits if she is eligible.

HR members should apply their minds before expressing such inhuman, chauvinistic, and Stone Age views.

Thanks & Regards

Ravishank said: "But my question is if the woman had to get pregnant, then why did she join the company? Just to avail maternity benefits? Because in today's world, couples plan their baby, so obviously the woman might have planned her baby. So, if she had planned her baby, then why did she join your company? Kindly counsel with her, and maybe you can ask her to resign and take on another employee as a replacement, because the company is running to make profits and not just to provide maternity leave to employees.

It is another point that the woman was working in your company for 1 year, and now she is demanding maternity benefits, but she has only worked for 4 months. There is no guarantee that she will return after pregnancy, as she might need to take care of the baby, so obviously, you will be wasting a lot of money on her. It is better to counsel with her and let her resign from the job. I feel maternity benefits should only be given to women who work for a long time, like 1 year or so."

Hi Mr. Ravi,

The act clearly states that the woman has to work for 80 days in twelve months. It is not the case that if she has not completed 12 months, she is not eligible. "In the twelve months" means during the twelve months. If she had worked continuously from the date of joining for 80 days, then she had completed the eligibility criteria. Instead of looking at negative points in the law, we should use it for positive outcomes to have better human relations. Only then can our HR profession be valued.

Going by prevailing law applicable to the private sector, there is no legal provision to offer Paternity Leave in case the child is adopted.

But government employees are entitled to paternity leave as well as leave in case the child is legally adopted. This topic is already discussed on the Citehr thread. You may search for the thread on Paternity Leave on Citehr to get further details.

You, as a progressive company, can introduce Paternity Leave in your company, though it is not a statutory requirement.

Thanks & Regards

I think we are not giving importance to the actual query posted by Deepmala.

Hi, vkokamthankar, now as you jumped to the conclusion that citehr members possess inhuman, chauvinistic, and Stone Age views, you are supposed to give a proper reply to the post interpreting the maternity leave benefit act. Beating around the bush doesn't solve the queries in this forum. Writing 'paragraphs' about what we are supposed to do and follow is always easy. But when it comes to entitlements based on any act or policy, follow the law in vogue, that's all. HR people are not here to curtail or deny any benefits which are admissible under the law, but to implement it in the best possible manner for the betterment of employees and the company. Change your misplaced notion.

Dear Mr. Ravishank,

I am surprised and amused by your reaction to my post. You have neither written anything relevant to my post nor anything to justify your suggestion to ask a pregnant employee to resign.

By expressing your anguish about discrimination, corruption, nepotism, and favoritism happening in the HR and corporate sector and questioning me about that, you have only sidetracked your own views.

I expressed my views against your post because, in my opinion, they were against basic human values. I have not studied the legal provisions of Maternity Benefits, and hence I will remain silent on that.

Thanks & Regards

Ravishank wrote:
vkokamthankar wrote:Dear Mr. Ravishank,

If you live in India, you know how much discrimination happens and what corrupt HR personnel do to get their acquaintances, relatives, and friends jobs. Managers prefer females in HR to entertain them; all this happens. What have you done to prevent it? Have you filed a case or taken any action? Because of this, hardworking, intelligent people suffer. Check out what happens in so-called MNCs, and then write. Here you are making big claims about a mere maternity issue.

Anyways, do you have any reply to my legal viewpoint regarding the number of days, because the employee is ineligible from a legal point of view.

Dear vkokamthankar,

I absolutely agree with you. After reading Mr. Ravi's reply, the same thing struck me as well, that the employer should have been cautious while selecting. But your reply cleared my doubt. Thanks.

[QUOTE=vkokamthankar;958743]Dear Mr. Ravishank,

The answer to your first question is very plain and simple. Pregnant employees also have the right to work and earn. Moreover, like every employee who is entitled to salary, holidays, leaves, and other benefits, female employees are entitled to maternity benefits.

Secondly, the employer should have been more cautious while selecting a new employee to check the possibility of a maternity break in the near future. Some employers do pay attention to this point in their pre-employment medical check-up. However, rejecting a candidate for such a reason will amount to discrimination against women and can attract punitive action against the employer.

You cannot ask an employee to resign because she is pregnant. Clearly, your views are chauvinistic and biased. Just as you get a leave when you are sick or to attend a marriage, female employees are entitled to maternity leave/benefits, irrespective of whether the maternity was planned or not.

Though we are not fully aware of the facts and circumstances of this case, it is possible that she was employed elsewhere before, and the new employer offered her a job for the specific skills and experience she possessed, which were urgently needed by the employer, hence overlooking the fact that she may need a maternity break after 6-8 months.

It is also possible that the female employee was in desperate need of a job and salary to support herself and her family, and she chose to endure the hardship of the job despite being pregnant.

Asking an employee to resign is totally out of the question, and she should receive maternity benefits if she is eligible. Cithr members should apply their minds before expressing such inhuman, chauvinistic, and Stone Age views.

Thanks & Regards

Dear Mr. Suresh_kms,

• My post was in response to a suggestion by a fellow Citehr member to ask the pregnant employee to resign because she is pregnant.
  
• ‘now as you jumped into conclusion that citehr members posses Inhuman, Chauvinistic and Stone Age views' In my opinion particular view of a poster is Inhuman, Chauvinistic and Stone Age. I did not conclude anywhere that all the views of Citehr members are Inhuman, Chauvinistic and Stone Age. You have misconceived and misinterpreted my view.
  
• ‘you are supposed to give a proper reply to the post interpreting the maternity leave benefit act' Sorry, I have already posted stating that, I have not studied legal provisions of Maternity Benefit and hence I will remain silent on that.
  
• ‘Beating around the bush doest solve the queries in this forum. Writing 'paragraphs' about what we are supposed to do and follow is always easy' I entirely agree with you. Without beating around the bush I expressed my views that asking employee to resign because she is pregnant is wrong. Practice what you preach, If you have any comment against what I have posted, please post it, be specific.
  
• ‘But when it comes to entitlements based on any act or policy, follow the law in vogue, that's all' please let me know under which provisions of which law pregnant employee can be asked to resign.
  
• ‘HR people are not here to curtail or deny any benefits which are admissible under the law, but to implement it in the best possible manner for the betterment of employees and the company' I am feeling very happy and relieved to read this and I endorse your views.
  
• ‘Change your misplaced notion' I am also a HR Professional and my view is same as you i.e. ‘HR people are not here to curtail or deny any benefits which are admissible under the law, but to implement it in the best possible manner for the betterment of employees and the company' I do not feel my notions are misplaced and they need to be changed.
  

Thanks & Regards

Dear All,

The Maternity Benefit Act is a beneficial legislation designed to protect the concept of motherhood. Reading between the lines is not necessary when one considers it as a beneficial and welfare legislation. The objective of every employer should be to pay the benefit, not avoid it. It is the essence of corporate duty to society.

With Regards,

E-mail: rajanassociates@airtelmail.in

I respect your concern about questioning why a woman has to join a workplace if she is expecting, especially if it's a planned pregnancy. It can be seen as a waste of time for both the individual and the employer. However, it is important to understand that pregnancy is not always planned; there are unexpected pregnancies as well. In such cases, neither the employee, employer, nor anyone else can control it. Therefore, it should be a concern for the employer involved.

Thanks

Dear Friends,

As per the law, the benefit of the doubt should be given to the accused. In this case, the interpretation of the lines should be that a minimum of 80 days in the preceding year the candidate should have worked, which is met. The interpretation should also be that an employee who is frequently absent, if they had worked for 80 days in the preceding 12 months, maternity leave should be granted. As HR professionals, we should behave in such a way that the employees are made to feel human and the company takes care of our interests. I fully agree with the viewpoint of Mr. V. Kokamthankar and, in conjunction with the lines given by Rajan Associates, the employee shall be granted leave, and the question of asking to resign should not arise.

Let us try to close the war of mails. Have a nice time.

Regards,
Avmoorthy

Dear Seniors,

Thank you for your feedback. I have a small query regarding the MBA Act. Is an employee on maternity leave entitled to mandatory holidays and festival holidays if they fall during the prenatal and postnatal duration? Is it 84 days plus mandatory stated national holidays and declared festival holidays, or is it limited to 84 days inclusive of mandatory, national, and festival holidays? Additionally, is Bonus payable under the Bonus Act 1965 for the salary/wages of 84 days? Lastly, should earned leave be calculated based on the above 84 days under the Factories Act 1948?

Regards,
Shiva Kumar

Dear Mr. Suresh_kms,

• My post was in response to a suggestion by a fellow Citehr member to ask the pregnant employee to resign because she is pregnant.
• ‘now as you jumped into conclusion that citehr members posses Inhuman, Chauvinistic and Stone Age views' In my opinion particular view of a poster is Inhuman, Chauvinistic and Stone Age. I did not conclude anywhere that all the views of Citehr members are Inhuman, Chauvinistic and Stone Age. You have misconceived and misinterpreted my view.
• ‘you are supposed to give a proper reply to the post interpreting the maternity leave benefit act' Sorry, I have already posted stating that, I have not studied legal provisions of Maternity Benefit and hence I will remain silent on that.
• ‘Beating around the bush doest solve the queries in this forum. Writing 'paragraphs' about what we are supposed to do and follow is always easy' I entirely agree with you. Without beating around the bush I expressed my views that asking employee to resign because she is pregnant is wrong. Practice what you preach, If you have any comment against what I have posted, please post it, be specific.
• ‘But when it comes to entitlements based on any act or policy, follow the law in vogue, that's all' please let me know under which provisions of which law pregnant employee can be asked to resign.
• ‘HR people are not here to curtail or deny any benefits which are admissible under the law, but to implement it in the best possible manner for the betterment of employees and the company' I am feeling very happy and relieved to read this and I endorse your views.
• ‘Change your misplaced notion' I am also a HR Professional and my view is same as you i.e. ‘HR people are not here to curtail or deny any benefits which are admissible under the law, but to implement it in the best possible manner for the betterment of employees and the company' I do not feel my notions are misplaced and they need to be changed.

Thanks & Regards

Dear All,

Now I get confused! For example, Mrs. Jyoti joined ABC Company in January 2009, and she is pregnant. Undoubtedly, she will ask for leaves in the months of August, September, or October. So, during this period, she will automatically be eligible to take the leave.

If I am not correct, then please suggest me.

At last, I am very confused. From what I have understood by going through all your replies, she has worked for more than 80 days. However, the question is whether she has completed 1 year (which she hasn't). What is the answer: Yes or No?

I am still having doubts, so I will ask my friend, an advocate, to clarify the same.

I have a query regarding the payment of salary to an employee who has availed maternity leave soon after completing the "80 Days." Is it mandatory to pay such an employee? Please guide me.

Who is Entitled to Maternity Benefit

1. Every woman employee, whether employed directly or through a contractor, who has actually worked in the establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery, is entitled to receive maternity benefit.

2. The qualifying period of 80 days shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of immigration.

3. For calculating the number of days on which a woman has actually worked during the preceding 12 months, the days on which she has been laid off or was on holidays with wages shall also be counted.

4. There is neither a wage ceiling for coverage under the Act nor any restriction as regards the type of work a woman is engaged in.

Hi Nisha, Is it 80 days or 160 days? According to the act, it is mentioned as 160 days.