Expecting During Probation: Will I Get Paid Maternity Leave?

I have joined on 24th July and am on probation for six months. I am expecting, and my due date is in the first week of December. Please confirm if I will be paid for my maternity leave or not.

One is entitled to maternity leave only after the completion of 1 year with the organization.

I have read in CiteHR that a woman who has served 80 days in the company is entitled to Maternity Benefits. However, I'll check the same once again, and if you can also confirm with me once more.

Warm regards,
Charu

Maternity Benefits Eligibility

As per the Maternity Benefits Act, a woman employee is entitled to maternity benefits if she has worked for 80 days during the 12 months immediately preceding the date of delivery. Probation or a service of one year is immaterial for maternity benefits.

Regards,
Madhu.T.K

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

Provided that the qualifying period of 80 days aforesaid shall not apply to a woman who has immigrated into the state of Assam and was pregnant at the time of immigration.

Regards

Dear all, Thank you for your input. I have one more query. One of my friends is expecting, and this is her 5th month. She is working in a Chemical Laboratory. She is given work in a Fume Hood. She refuses (because chemical fumes are harmful) and requests her seniors to assign her lighter work. However, she is being forced to work there.

Maternity Act and Work Environment

Is there any clause in the Maternity Act which states that she cannot work in a toxic environment and should be given lighter work? Also, if she continues to work there and any abnormalities occur during childbirth or if the child is born with abnormalities, what legal obligations is the company responsible for?

Please help and guide me.

Regards,
Hansa Vyas

Pregnancy and Employment Regulations

As per Section 4 of the act, a pregnant woman, if requested, shall not be employed in any work harmful to pregnancy or child development during the one month prior to six weeks immediately preceding the date of delivery. However, this provision is not applicable during the fifth month.

Regards,
Varghese Mathew

Eligibility for Maternity Benefit:

A woman shall be entitled to maternity benefits only if she has actually worked in an establishment of the employer for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery.

So, based on the above information, you are eligible for maternity benefits.

Regards,
Rajbir

As per Section 4(3), subclause (4), no pregnant woman shall, upon making a request, be required by her employer to perform any work of an arduous nature or involving long hours of standing during the period of one month immediately preceding the period of six weeks before the date of her expected delivery. Such work should not interfere with her pregnancy or the normal development of the fetus, nor should it pose a risk of causing miscarriage or adversely affect her health. Violation of this section will attract imprisonment for up to one year, a fine extendable up to Rs 5000, or both. Furthermore, such violations may also be considered a breach of human rights, and appropriate action can be taken accordingly.

Thank you.

I agree with Mr. Madhu T K. I would like to add that the training period, probation period, or confirmation is immaterial for meeting any statutory obligation of the employer.

Regards,
Kamal P

If she had worked 80 days in her previous employment and during her pregnancy, let's say in the 3rd or 4th month, she joins another company, can she avail maternity benefits from the prior employer? What if she is covered under ESI?

Thank you.

Please see what the Act says:

THE MATERNITY BENEFIT ACT, 1961

This Act provides for the payment of wages to a woman during the leave period for giving birth to a child, miscarriage, or illness arising out of pregnancy, delivery, and premature birth of a child or miscarriage.

A woman is entitled to full wages during leave for the aforesaid reasons. The leave period for the delivery of a child is 12 weeks, while in the case of miscarriage, it is 6 weeks. For other reasons, it is one month.

This benefit can be claimed by women who have worked a minimum of 80 days during the last 12 months in an establishment. This Act does not apply to any factory-establishment to which the "Employees State Insurance Act" is applicable. Women earning a salary of more than Rs. 6,500/- are also not entitled to this benefit.

A notice for claiming this benefit is to be given by women to the employer. The employer is prohibited from dismissing the woman employee during the entitlement of this benefit. Section 18 of this Act describes the conditions when this benefit can be forfeited.

Provisions for Inspectors to implement this law are also made. Inspectors are given the power to direct the employer to make payments under this Act.

Dear Sonali B, please don't confuse members with your incorrect inputs on this forum. First, try to gain proper knowledge and information on the topic before giving your input. Don't provide input with half-baked knowledge.

There is no salary ceiling for receiving benefits under the Maternity Benefits Act, 1961. There is no dispute on this matter. If a female employee is not covered under ESIC benefits for whatsoever reasons, by default, she will be covered under the Maternity Benefits Act, 1961.

Let's all follow the saying: “It is better to keep our mouth shut and appear a fool than to open it and remove all doubt.”

Regards, Kamal P

Dear Sonali,

Greetings!

In the above-mentioned lines: "This benefit can be claimed by women who have worked a minimum of 80 days during the last 12 months in an establishment. This Act does not apply to any factory-establishment to which the 'Employees State Insurance Act' is applicable. Women earning a salary of more than Rs. 6,500/- are also not entitled to this benefit."

My query is, as you said, women earning more than Rs. 6,500 are not eligible for maternity benefits. On what basis did you make that statement? Can you please provide any relevant legal clause in any law for that statement you made?

Please do reply soon.

Regards,
Raja

You are entitled to maternity leave. However, weekly holidays and all paid or unpaid leave are not included in these 80 days.

Regards,
Sanjay Thakur

For the calculation of 80 working days, the following explanation given under section 5 of the MB Act may be helpful:

"Explanation Under Section 5 of the MB Act"

"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."

Accordingly, count your working days and paid holidays. All the best.

@ Sonali B...

I think you have not understood the explanation given in the act. Let me explain to you.

Section 5-B of the Maternity Benefit Act 1961

Section 5-B of the Maternity Benefit Act 1961 explains the payment of maternity benefits in certain cases. Every woman:

- (a) who is employed in a factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply;
- (b) whose wages (excluding remuneration for overtime work) for a month exceed the amount specified in sub-clause (b) of clause (9) of Section 2 of that Act; and
- (c) who fulfills the conditions specified in sub-section (2) of Section 5, shall be entitled to the payment of maternity benefit under this Act.

Subclause b is talking about the Employees State Insurance Act, 1948, which states that employees earning wages up to ₹15,000 (previously it was ₹6,500 [1997-2004], then ₹7,500, and now ₹10,000, as you have mentioned) are eligible to receive benefits under the ESIC Act. Anyone earning wages above ₹15,000 is not covered under the ESIC Act, 1948.

Hence, any female employee working in a factory covered under ESIC whose wages are above ₹15,000 (not entitled to ESIC benefits due to the wages ceiling) is covered under the Maternity Benefits Act 1961 by default. There are no ifs and buts in this explanation; the only criterion is a work period of not less than 80 days in the twelve months immediately preceding the date of her expected delivery.

It seems you are from Maharashtra, so to understand the topic properly, please go through the rules as explained in the Maharashtra Maternity Benefit Rules, 1965.

The Factory Act 1948 and the Maternity Benefits Act 1961 are two different acts, and in case of a clash of provisions, though there is none, the Maternity Benefit Act would prevail as it is a social benefit legislation.

I repeat, there is no salary ceiling for receiving benefits under the Maternity Benefits Act in any type of industry.

I hope your doubts are clear now. A wise tip for you: Upgrade your knowledge. Don't react and don't make it a prestige issue if someone tries to correct you.

Eligibility for Maternity Benefits Under the MB Act

There is no wage limit for the benefit under the MB Act. The woman need not be married. Though the ESI Act is applicable to the establishment, an employee is eligible for benefits under the MB Act if her salary is above Rs 15,000 per month and she is not eligible under the ESI scheme. Her designation or nature of work is immaterial. Even a new employee covered under ESI will be eligible for benefits under the MB Act (subject to conditions) until she becomes eligible under the ESI Act without default.

Regards,
Varghese Mathew
[Phone Number Removed For Privacy Reasons]

80 days are not counted based on the financial year or date of joining, but it is 80 days during the period of 12 months immediately preceding the date of delivery/expected date of delivery. The expected date of delivery is important because only 6 weeks of leave can be granted before the date of delivery, and as the date of delivery can change, we take the expected date of delivery. Therefore, 12 months are taken backwards from the expected date of delivery.

Regards,
Madhu.T.K

Maternity Leave Entitlement for Women Employees

Any woman employee working for the company for the last 80 days is entitled to maternity leave. Before delivery, she is entitled to 6 weeks of leave, and after delivery, another 6 weeks. If she wants an additional week, she must inform HR first. During this leave period, she will not receive any wages from the company but will receive money from ESI. All permanent employees are eligible, except for apprentices and trainees. For more details, refer to the Shops and Establishments Act, Section 24 and 25.

Suppose a company, in its joining letter, states that an employee has to undergo 18 months of training and a 6-month probation period. If a female employee's delivery date falls within her training period (specifically, the last month of training), is she eligible for maternity leave?

For example, if she joins on 1 Jan 2009 (enters the training period from 1 Jan 2009 to 31 July 2010, and probation from 1 Aug to 1 Jan '11), got married in Feb 09, and her delivery date is 28 July 2010, would she be eligible for Maternity Leave?

Regards,
Hansa

Maternity Benefits for Contractual Employees

Contractual employees are also entitled to maternity benefits if there are no specific conditions on maternity benefits in their contract.

Just want to share with you all that, as per the latest judgment of the Honorable Karnataka High Court, "Contractual employees are also entitled to maternity benefits under the Maternity Benefit Act."

In its landmark judgment, the Honorable Court ruled "that the provisions of the Statutory Act and State Policy as per the Constitution of India would prevail over the terms and conditions of contractual employment."

The court ruled that "where the terms and conditions on maternity benefits are absent in the contract, the provisions of the Maternity Benefit Act, being a statutory provision, will automatically apply."

Regards,
Kamal