Is My Employee Eligible for Paid Maternity Leave Under the Maternity Act? Seeking Clarification on Eligibility Criteria

Dear All,

I have an employee who joined us on 9th Feb 2011. She has applied for maternity leave starting from May 10, 2011.

My query is whether she is eligible for paid maternity leave of 12 weeks as per the Maternity Act. The Act states that a person should have worked for a minimum of 160 days in the preceding 12 months. However, there seems to be some discussion indicating it might be 80 days.

Please clarify.

Regards,
Sreejith Nair

Could you please inform me about the section of the MB Act that stipulates a woman must have worked for 160 days in the preceding 12 months to be eligible to claim maternity benefits?

With regards,
V. HARIKRISHNAN

Dear Mr. Harikrishnan,

Thank you for the response. Please find the link hpblabour.gov.in/pdf/acts_rules/maternity_benefit_act_1961.pdf where it is mentioned as 160 days in the preceding 12 months (Clause 5 Explanation 2). I have seen other copies of the Act on cite HR which state that it is 80 days in the preceding 12 months.

Also, is it the actual days of work or does it include weekly holidays and other holidays? (We have a 5-day week). I would appreciate clarification from your end.

Regards, Sreejith Nair

Dear Sreejith Nair,

If you are referring to the Himachal Pradesh Labour Department site, then under The M B Act, 1961, it is written as follows:

"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 in the twelve months immediately preceding the date of her expected delivery."

Thus, it is nowhere written as 160 days. Previously, many years back, it was 160 days.

R.N.KHOLA

Previously, it was 160 days, but presently, it is 80 days. Therefore, if a woman employee has worked for at least 80 days during a period of twelve weeks immediately preceding the expected date of delivery, she is eligible to get 84 days of maternity leave (with pay).

Regards,
Madhu T.K

Thanks for the replies.

One more clarification; how will we count these 80 days? Is it the actual days the person has worked? Or can I count the difference in days from the joining date to the date the employee goes on leave?

In this specific case, the employee joined us on February 9th and is going on Maternity leave from May 10th. We work on a 5-day week, and the employee has availed 3 leaves since joining. If we consider her employment duration, it is 90 days. However, if we count the actual days of work, it is 61 days.

Regards,
Sreejith Nair

Dear Mr. Sreejith,

The explanation to section 5(2) of the MB Act answers your query. Between February 9th and May 10th, you have to reckon all the days she worked, all the days she was on leave with wages, and all the weekly offs. Though you work only for five days in a week, the two-day holiday is given by the employer and not availed by her on her own. I trust you have not laid her off during this period.

Dear Mr. Sreejith,

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 benefits has to be made for all days, including Sundays and rest days, which may be wage-less holidays comprised in the actual period of absence of the woman extending up to six weeks preceding and including the day of delivery. This calculation also includes all days falling within the six weeks immediately following the day of delivery. 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, as per Sec. 3(n) of the Act but also the benefit of wages for all Sundays and rest days falling within the aforementioned two periods. This ultimately contributes to the interests of both the woman worker and her employer.