Navigating Maternity Leave: How Long Should I Pay My Employee Without ESI Benefits?

Respected seniors, I am working in a software company. One of my employees is going on maternity leave. She is covered under a mediclaim group policy but does not have ESI benefits.

Maternity Leave Eligibility and Salary Payment

My question is, how many days will she be eligible for maternity leave, and should I pay her salary while she is on maternity leave? If she had ESI benefits, the salary would be paid by ESIC, but she has exceeded the ESI limit.

Please provide your information.

Regards,
Venkat

If a female employee is not covered under the ESI, then by default, she will be covered under the Maternity Benefit Act, 1961. The company has to pay a medical bonus of Rs. 2500/- and provide maternity leave for 12 weeks with full salary. The Mediclaim policy has nothing to do with the statutory obligations of the employer.

Regards,
Kamal

As per the provisions of the Maternity Benefit Act, 1961, every woman employee shall be entitled to take maternity benefit at the average daily wage for the period of her actual absence immediately preceding and including the day of her expected delivery and further for the 6 weeks immediately after the delivery of the child. The maximum period any woman is eligible to take leave is 12 weeks. During the leave period, the employee is entitled to receive her salary as usual without any deduction.

If the concerned employee has not availed the benefits of ESI, in this case, she is eligible to claim maternity benefits. The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on the production of proof that the woman employee is pregnant, and the amount needed for the maternity benefit for such a period shall be paid by the employer within 48 hours of the production of proof of the delivery of the child.

Best Regards,

Dear Venkat, as per the provision of the Maternity Benefit Act, 1961, every woman employee shall be entitled to take maternity benefit at the average daily wage for the period of her actual absence immediately preceding and including the day of her expected delivery, and further for the 6 weeks immediately after the delivery of the child. The maximum period any woman is liable to take leave is 12 weeks. During the leave period, the employee is entitled to receive her salary as usual without any deduction.

If the concerned employee has not taken the benefit of ESI, she is eligible to claim maternity benefits. The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman upon the production of proof that the woman employee is pregnant. The amount needed by the woman for maternity benefit for such a period shall be paid by the employer within 48 hours of the production of proof of the delivery of the child.

Best Regards,

Dear Venkat, if there is some illness that occurs due to the pregnancy, the employee is further entitled to one month's leave with wages on top of the 12-week period. The section is reproduced for your reference:



The maternity benefit is to be payable in advance to the employee before proceeding on maternity leave. Kamal Kant Tyagi

Mr. Vikas is correct. If you need any further clarification, kindly refer to the Maternity Act; it will be very helpful.

Regards,
Sameer K Ghosh

My wife is working in a private company in Gurgaon. She is pregnant, and her expected date of delivery is 24th October 2014. The company where she is employed has more than 10 employees and should fall under providing maternity benefits to her according to Indian laws. However, the company is denying to provide any maternity benefits to her. My wife joined the company on 5th August 2013. Her in-hand salary is Rs. 36,000 per month.

Query on Maternity Benefits in Private Companies

I would like to know whether private companies can make their own rules and laws and not provide maternity benefits at their own discretion. If not, then please suggest a way forward to get maternity benefits.

Looking forward to your reply.

Thank you

I suggest that you go through the Maternity Benefit Act, 1961, and the rules framed thereunder. There are certain conditions under which the said Act is applicable to any establishment, and in order to be entitled to maternity benefits, there are also some eligibility conditions.

Statutory laws and rules apply to all coverable units. If you believe that your case is well covered under the above enactment, your wife may take up the matter with the management of the establishment for maternity benefits as per the provisions of the said Act.

We have already taken up the case with the management of the company, and they are denying providing any benefits. I have also confirmed that she is eligible for the same. Should we lodge a complaint with the labor commissioner? Is there a formal procedure for doing so?

Thank you.

I think the concerned woman employee (your wife) may be working in or around Gurgaon since, as per your particulars, you are Gurgaon-based. Hence, in my opinion, the Maternity Benefit Rules as framed or adopted by the State of Haryana will be applicable. You can get a copy of said Rules locally from any law bookshops. From said Rules, you can ascertain the appropriate authority before which the woman employee can make an application after the cause of action will arise. I think, at present, there is enough time to ascertain all these facts. The cause of action in the case, in my opinion, will arise only after the application as per the prescribed procedure, on the prescribed form, is rejected by the employer, and only thereafter the woman can file any complaint before the appropriate authority. You can also ascertain the appropriate authority under the said Act locally from the Labour Department.

I think the woman employee is required to issue a notice of claim for maternity benefit to the employer as required under section 6 of the Maternity Benefit Act, 1961, at an appropriate date as laid down in said section. I think you can take action suitably.

However, you have not disclosed what plea/arguments on the basis of which the employer wants to reject the claim of the woman employee. You may also examine whether the employer is paying or has paid maternity benefits to other woman employees in the past.