Confused About Maternity Leave Eligibility: Is It 80 Days or 180 Days of Work?

I have a query: For availing maternity leave, does a female employee need to work for 80 days or 180 days in an organization? Some sources mention 80 days, while others mention 180 days. Which one is the correct duration? Please reply.

An employee should have worked for a minimum of 80 days in the preceding 12 months.

Regards,
Aparna

The female staff who have worked at least eighty (80) days in the twelve months preceding the date of her delivery are eligible for maternity leave.

It was 160 days earlier, but with effect from 10-Jan-1989, vide amendment act no. 61 of 1988, the said number 160 is changed to 80 days.

Regards,
CS Mukesh TANK

I want to know, if a woman has been working in a company for one year and she wants maternity leave plus one month of extra leave. Suppose the management approves her leave, and she intends to return to work after her maternity leave. However, if the management does not want her to rejoin, what should she do?

If the leaves were sanctioned by the authorities in a proper manner, then she can file a case against the company. There is a hundred percent chance of winning the case as it is illegal to not allow a female employee to return to the company after her maternity leave.

Regards, Archna

A small correction in your statement: the Maternity Benefit Act does not indicate that women should be married to claim maternity benefits. Therefore, any woman who has fulfilled the eligibility criteria can claim maternity benefits.

Regards,
M.V. Kannan

Women who are temporarily employed and unmarried are eligible for maternity benefits when they are expecting a child and have worked for their employer for at least 80 days in the 12 months immediately preceding the date of their expected delivery.

Regards,
Sandeep

Hi Friends, What if a woman has not worked for 12 months but has completed 80 days? And what if the woman has not worked for 12 months and also has not completed 80 days? 80 days is equivalent to 2 months and 20 days. Suppose we recruit a woman employee, and she has not completed even 80 days and claims for maternity benefits. Can we give her the benefits? As per my understanding, NO. This means that the employer must be careful at the time of appointing female employees.

Discussion on Eligibility for Maternity Benefits

But please discuss the case in which a woman works for 80 days but has not completed 12 months.

Regards, CS Mukesh TANK

I am in agreement with the statement of Mr. Mukesh Tank. However, to supplement his views, it is for your information that the said provision of even the minimum limit of 80 days is not applicable to a woman who has immigrated into the State of Assam and was pregnant at the time of immigration.

Extract of the amended Section 5(2) of the Act is reproduced below for the general guidance of one and all.

Extract of Sec. 5(2) of the Maternity Benefit Act 1961, as amended vide The Maternity Benefit (Amendment) Act, 1988 (61 of 1988)



No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than [eighty days]1 in the twelve months immediately preceding the date of her expected delivery:



Provided that the qualifying period of [eighty days]2 aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of immigration.



Explanation.—For the purpose of calculating under the sub-section, the days on which a woman has actually worked in the establishment [the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.



Details of Amendment

1 Subs. by Act 61 of 1988, Section 4, for “one hundred and sixty days” (w.e.f. 10-1-1989)

2 Subs. by Act 61 of 1988, Section 4, for “one hundred and sixty days” (w.e.f. 10-1-1989)



The Amended Act of 1961 is also attached below for the general guidance of all.

Regards

As per the Act, a woman shall be entitled to maternity leave if she has actually worked for not less than 80 days in the 12 months immediately preceding the date of her expected delivery. Hence, she need not work for 12 months. The 12-month period should be worked out backwards from the expected date of delivery. In other words, if a woman with 7 months of pregnancy joins an organization and after working for 80 days, applies for maternity leave, she should be granted the leave; otherwise, you will be violating the Act.

Regards,
Kanna Vijaya Kumar

Hi Friends, the provision of fewer days is only for the women of Assam. My question is, if a female employee has not completed 12 months but has completed 80 days, will she be qualified for maternity benefits? This situation is likely to occur, and I am sure many of our friends must have come across such a scenario. Request to please update us on this issue.

Regards,
CS Mukesh TANK

Please let me know how 80 days are calculated.
1. Do they include weekends (Saturday & Sunday)?
2. Do they include company holidays (Holi, Diwali, etc.)?
3. Do they include company-paid leaves (Casual Leaves, Medical leaves, etc.)?

Please also provide the link for the amendment or act where this is clearly specified, as my HR is not sure about policies in India and is considering 80 days as approximately 4 months. I might not be eligible for maternity benefits in that case, so I urgently need clear information on this.

Thanks & Regards,
Neha

You simply need to link the number of days to the salary becoming due and paid to the employee. If he/she is eligible to draw a salary for the Saturdays/Sundays, holidays, casual leave, and medical leave periods, all those are counted as the number of days the employee worked in an organization.

Thank you for reaching out. Your HR department is stating that if you take your Casual Leaves before maternity leave, it will be considered as part of your maternity leave. Is there any legislation or regulation I can provide to her to support my position? In our office, we do not have specific Medical Leaves, but I am entitled to 7 Casual Leaves (paid) prior to commencing my maternity leave. My 80 days will be fulfilled on April 15th, and my due date is May 8th. However, due to not feeling well and uncertainty about my ability to continue working, I am considering taking leave as soon as possible.

I am contemplating utilizing at least 5 days of Casual Leave from April 11th to 15th and then transitioning to my maternity leave starting on April 18th (Monday). This plan will ensure that I complete my 80 days and have a week to rest before officially beginning my maternity leave. I appreciate your guidance on this matter.

Best Regards,
Neha

Dear Neha,
The ruling position states that casual leave cannot be prefixed or suffixed with any kind of regular leave. Therefore, if C/L is taken and any other type of regular leave immediately follows the expiry of C/L, then in that scenario, C/L is considered part of the subsequent regular leave. However, if even a single day's duty is followed by C/L and any other type of leave is taken after the duty, then C/L cannot be considered part of that subsequent leave.

Therefore, you may need to plan your C/L in a way that allows you to attend your duties for at least one or two days before the commencement of your maternity leave. By doing so, C/L will be distinct from your maternity leave and will not be included as part of your maternity leave.

Best Regards,
PS Dhingra
CEO cum Management & Vigilance Consultant
Dhingra Group of Consultants
New Delhi
[Phone Number Removed For Privacy Reasons]
[Email Removed For Privacy Reasons]

Maternity Leave Eligibility and Calculation

For calculating 80 days, a few companies include Saturdays and Sundays, but some do not. Is this discrimination allowed by the Indian government? I am not very sure, but there should be a clear mention of this, and this policy should be the same for all companies in India. Otherwise, UK and US-based companies are taking full advantage of this to exploit people in India. They can easily show that they are paying only for weekdays and increase the minimum days for maternity benefit eligibility.

Thanks & Regards,
Neha

I want to know if a woman has been working for one year in a company and she requests maternity leave along with an additional one-month leave, and the management approves her request, but upon her desire to return after maternity leave, the management refuses to rehire her, then what should she do?

Maternity Leave Entitlement

All pregnancy cases are entitled to three months of paid leave by all companies. In complicated cases such as a Cesarean section, the leave period can be extended by up to one month. The company is obligated to consider rehiring you as the laws are very strict in such situations. Therefore, you have a good chance of the company accepting you back. If not, you can legally challenge the decision and most likely succeed. Wishing you all the best and congratulations on entering motherhood.

Our employees work Monday to Friday. Should the 80 days include weekends, or should the 80 days only be based on Monday to Friday? I want to ensure we comply with the law regarding maternity benefits for an employee who is due to go off but may not complete 80 days before going off work. I know good practice would be to pay the employee anyway if possible, and this is something I would discuss with the managers. However, I want to be clear that we are correct with the law and cannot get a definite answer on whether the 80 days worked should include weekends or not.

Thank you

In layman's language, the working days include the days for which the woman was paid wages or salaries, that is, all the 7 days of the week if the office observes a 5-day week, provided she is paid for all the 7 days during a 5-day work week. The explanation below Sec.5 of the Maternity Benefits Act amply clarifies that. The extract of the explanation is reproduced below for your guidance:

Explanation

For the purpose of calculating under the sub-section, the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

Regards,
PS Dhingra

Provisions of Section 12(2)(a) still exist, according to which your employer should not have discharged or dismissed you. You were entitled to full maternity benefits as per the provisions of the Maternity Act. In case of failure, you could have approached the inspector appointed in connection with the provisions of the Act to claim the benefits. In addition to the payment of benefits, the employer could have been punished with imprisonment and/or a fine imposed by a court of law under the provisions of Section 21 of the Maternity Act.

Explanation below Section 5 clearly makes you eligible for maternity benefits during the days of layoff as well. An extract of the same is reproduced below for your guidance:

Explanation.—For the purpose of calculating under the sub-section, the days on which a woman has actually worked in the establishment the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

Regards

What is the policy for maternity leave? How many paid leave days can I avail of? I am working in a private limited company. Please reply as next month I want to avail the same.

Regards.

Hi, I'm Anu. I'm working in a government undertaking, the Federation of Cooperative Department of Jharkhand, on a contract basis since November 2012. Now, I'm pregnant, and my delivery date is 23 August 2015. I want to know if I'm eligible for the Maternity Benefit Act 1961 and when I can start my leave. Is it leave without payment or with payment? What are the non-cash benefits?

Regards,
Anu

I am working in a private company for the last 8 years, and currently, I am 14 weeks pregnant. My pregnancy involved some complications, so my doctor advised me to take leave during the first 12 weeks. I applied for maternity leave of 3 months, which was granted to me initially, but almost at the end, my company rejected the same citing the below clause:

Maternity Leave Clause

Maternity leave is governed by the Maternity Benefit Act, 1961. As per the provisions of this Act, maternity leave shall be 12 weeks, of which not more than 6 weeks shall precede the date of her expected delivery.

Please advise whether the same is correct.