Maternity Leave and Earned Leave: Can 84 Days of Leave Count as Working Days?

If an employee is on maternity leave for 84 days, covered under ESI, how will ELs be calculated? Can the 84 days of ML be considered as working days?

Thank you.

ML should be calculated as a working day for calculating as a working day.

Regards,
Praveen

Eligibility for Earned Leave During Maternity Leave

For the purpose of arriving at 240 days, you can consider maternity leave, but no employee will earn leave during maternity leave.

Ex: An employee worked for 160 days in that particular year. As per the act, a minimum of 240 days needs to be worked for eligibility for earned leave. Therefore, 160 actual working days + 84 days of maternity leave make the employee eligible for earned leave. However, the employee will only receive 8 days of earned leave (160 days / 20 = 1 earned leave for every 20 working days).

Regards,
Kamesh

The period of maternity leave is treated as a period of permitted absence with wages and can be considered part of continuous service (working days) for various benefits like gratuity, P.F., and ESI. As Mr. Kamesh said, it is used for computing 240 days to be eligible for earned leave but does not count towards computing earned leave thereafter or for computing 240 days under the Industrial Disputes Act, 1947, to determine eligibility for retrenchment compensation.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai
[Phone Number Removed For Privacy Reasons]

Even if an employee is on permitted absence for maternity leave without receiving wages for 84 days, how can we consider it as a working day if we do not pay her wages? The employee is covered under ESI, and the payment of her wages is routed through ESI.

Regards

Even if an employee is on permitted absence during maternity leave without receiving wages for 84 days, how can we consider it as a working day if we do not pay her wages? As the employee is covered under ESI, the payment of her wages is routed through ESI.

ESI Act and Maternity Leave

It is mentioned in the ESI Act that "No work for remuneration should be undertaken during the period for which maternity benefit is being or is to be claimed. Notice of resumption of work must be sent before any work is undertaken."

Regards

What I have said is that the period of maternity leave will form part of the "continuous service" for various benefits like gratuity, leave, retrenchment compensation, P.F., or ESI, thereby meaning that it cannot be treated as a "break-in-service" for the above purposes. I put the words "working days" in brackets, looking at the context in which your query was discussed. To understand how it is treated as a working day for the purposes of leave, gratuity, or retrenchment compensation, one needs to go through the relevant provisions of law under the relevant Acts.

If you go through Sec. 79 of the Factories Act 1948, Sec. 25-B of the Industrial Disputes Act 1947, or Sec. 2-A of the Payment of Gratuity Act 1972, they, in very unambiguous terms, lay down that the period of maternity leave not exceeding 12 weeks availed by a female employee or a workman shall be deemed to be the days on which she has worked in a factory or establishment, irrespective of whether the employer paid her the wages or the ESIC paid the maternity benefit. This mandate is despite the fact that the Maternity Benefit Act or ESI Act prohibited her from working during the period of maternity leave. Thus, the relevant laws being welfare legislations created a fiction of "working days" for the period of maternity leave to protect her rights to benefits like eligibility for leave, retrenchment compensation, or gratuity. It is in this context that the term "working days" needs to be understood, but not from the narrow perspective that the female employee is not receiving wages from the employer.

I trust this clarifies the issue.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai
[Phone Number Removed For Privacy Reasons]