Can a Productive Employee on Maternity Leave Request Full Salary for Remote Work? How Should Companies Respond?

Dear Seniors,

Can a female employee who has been working with the company for more than one year and has been a good performer, and who has agreed to work from home while on maternity leave, request her full salary to be paid instead of just Basic + DA as per the law?

Company's Stand on Salary During Maternity Leave

What should be the stand taken by the company in this case when it becomes evident that the employee is working and is productive even though she is working from home? Kindly advise regarding the decision to be taken from a legal and human aspect in this situation.

Regards,

Dear Ms. Jyoti Jain,

Working from Home During Maternity: Legal and Practical Considerations

Working from home during maternity is a bad precedent. It is also illegal, and there are no provisions for it under the Maternity Benefit Act of 1961.

Purpose of Maternity Leave

Have you considered the purpose of maternity leave? Why are women advised to rest during this period? Why do doctors recommend rest during pregnancy?

The pregnant woman in question is a good performer, which is likely why you have suggested this arrangement. If you allow this woman to work from home, it could set a trend in your company. While things may go smoothly in this particular case, pregnancies can often be complicated. How will other women manage both caring for an infant and handling office responsibilities? I recently witnessed a situation where a newborn baby cried non-stop for 3-4 months! Even during pregnancy, women are advised not to sit in one position for extended periods.

Succession Planning and Replacement Arrangements

We often discuss succession planning. So, why are we unable to arrange for a replacement for a pregnant employee for a few months? Pregnancies are not sudden occurrences. HR or the company's management should plan for the absence of a female employee well in advance. Instructing a pregnant woman to work from home indicates reliance on the individual rather than the process.

These are my candid opinions, and they may come across as rather firm.

Thanks,

Dinesh V Divekar

Dear Ms. Jyoti Jain,

Legal Provisions Under the MB Act

Please refer to Section 4(1) of the MB Act. According to this section, the employer cannot employ a woman in any establishment during the six weeks immediately following the day of her delivery, miscarriage, or medical termination of pregnancy. Section 4(2) prohibits a woman from working in any establishment during the six weeks immediately following the day of her delivery, miscarriage, or medical termination of pregnancy.

Therefore, there is a legal prohibition on the employer to employ a woman during the six weeks immediately following the delivery. Also, there is a legal prohibition on the woman employee to work during the six weeks immediately following the delivery. You should be aware that there cannot be a contract contrary to the provisions of the law.

Even if the woman employee agrees to work during the six weeks immediately following the date of delivery, the employer cannot employ her during this period. Violation of Section 4(1) is an offense under the MB Act and is punishable under Section 21 of the Act.

Even assuming that the woman employee had consented to work from home during the six weeks immediately following her date of delivery, this consent cannot be set up as a defense for a prosecution of the employer under Section 21 of the Act for violating Section 4(1). Payment of full wages instead of Basic plus DA will not be an extenuating circumstance for the employer to escape criminal liability, as any contract or agreement contrary to the law is void ab initio.

Moreover, if the employee thinks so, she could even move the National Commission for Women or the State Commission for Women complaining against the employer.

Regards,

Thank you, Mr. Divekar and Mr. Harikrishnan, for your frank opinions on the subject. However, I would like to add that I have seen many cases where pregnant women themselves express the desire to continue working even until their 9th month since they prefer to make the most of their maternity leave after the delivery of the child. They would like to have more time at home to tend to the newborn and recuperate. In your opinion, what should the company do in such cases?

Thanks & Regards,
Jyoti Jain

Understanding Maternity Benefit Entitlements

Please read Section 5(3) of the MB Act. This section prescribes the maximum period for which any woman shall be entitled to maternity benefit as twelve weeks. It also states that out of these twelve weeks, not more than six weeks shall precede the date of her expected delivery.

In the MB Act, there is no mandatory provision requiring the woman to avail maternity benefit for any specific period before the date of her expected delivery. This means that the woman can space her twelve weeks of maternity benefit for a period not exceeding six weeks before the expected date of delivery and for six weeks after the date of delivery.

Alternatively, in an extreme case, the woman may not avail even a single day of maternity benefit before her delivery and avail the twelve weeks of maternity benefit starting from the day of delivery. In other words, she can legally work up to the time she gets labor pains and once the pain starts, admit herself to a hospital of her choice.

However, the legal prohibition contained in Section 4(1) and Section 4(2) is for the woman's employment for six weeks following her date of delivery. I believe I have clarified the issue raised by you.

With regards,

I thank Mr. Divekar and Mr. Harikrishnan for their correct opinion. Dear Jyoti, there are specific reasons for the provision of Maternity Benefits in the form of full wages during the specified 12 weeks of Maternity Leave. No employer has the legal (or moral) right to alter such provisions at their will and convenience. Also, all would-be mothers should have a strong commitment towards the health and well-being of their unborn child and must resist any temptation or coercion by their employers.

Warm regards.

Maternity Leave: Employee's Choice and Company Practices

How to split the maternity leave, how much before and how much after, is a choice of the pregnant employee. During my days, we did not bother much on this count. The only thing we used to tell the pregnant employee was to apply for maternity leave well in advance so that we could arrange her replacement.

The second thing is, wherever I worked, we paid the full salary and not just Basic + DA. This full payment was considered a welfare measure.

Ok...

Regards,
Dinesh V Divekar

Maternity Benefit: A Statutory Protection

Maternity benefit is a statutory protection for motherhood and the human rights of women. Any cost-cutting method or deviation from the rest guaranteed to the mother by law, such as leave with full pay, will be a direct affront to this concept and a violation of human rights.

Regards,
Rajan Associates

Link to the source

In your first post, you have said, "Can a female employee who has been working with the company for more than 1 year and has been a good performer, who has agreed to work out of home while being on maternity leave, request for her full salary to be paid instead of just Basic+DA as per law..?? Your presumption that as per law only Basic + DA need to be paid is not correct according to the interpretation of Section 3(n) of the MB Act by the Honourable Supreme Court of India.

It will be of interest to all to know that in B. Shah vs. Labour Court and others reported in 1977 (35) FLR page 414, the Honourable Supreme Court of India has held that the computation of maternity benefit has to be made for all the days, including Sundays and rest days, which may be wageless holidays comprised in the actual period of absence of the woman extending up to six weeks preceding and including the day of delivery. This also applies for all the days falling within the six weeks immediately following the day of delivery.

The Woman Worker Receives Full Wages

This ensures that the woman worker receives, for the said period, not only the amount equaling 100 percent of the wages she was previously earning in terms of Sec. 3(n) of the Act but also the benefit of wages for all the Sundays and rest days falling within the mentioned two periods. This arrangement ultimately benefits both the woman worker and her employer.

Regards

One of our female employees, who has been working with the company for more than two years, has agreed to work from home starting from the fifth month of her pregnancy. We agreed and paid her full salary. However, from the seventh month of her pregnancy, she has been unable to perform her duties and send the daily reports.

Action Required for Non-Productive Work from Home Situation

What action should the company take in this situation, considering that the employee is not being productive even though she is working from home? Kindly advise on the decision to be made from both a legal and human perspective in this scenario.

Regards, R. Bindu