Navigating Extended Maternity Leave: Can We Ask an Employee to Resign and Rejoin?

Discussion on Special Maternity Leave Case

This is to discuss a special case. An employee with 7 years of experience in our organization is expecting. Due to illness arising from pregnancy, she started her leave in September 2012. So far, she has not returned. Her expected date of delivery is in June 2013.

Company Maternity Leave Policy

As per company policies, maternity leave is for 6 months—3 months paid and 3 months unpaid. We usually allow employees to start their maternity leave when they want; i.e., we don't enforce the 6-week before and 6-week after pregnancy restriction rule strictly to make the policy more employee-friendly.

Query on Employment and Benefits

Now, the employee has already completed 6 months of leave. Can we ask her to resign and rejoin after pregnancy? In this case, will she be eligible for maternity benefits? She has attained the 80-day eligibility limit as she was regular between June 2012 and August 2012, and she came in between intermittently.

Please help.

Not finding anything in the legislation to support this employee. However, if the employee has a good track record and management is kind enough to give her some more break, HR could consider implementing a new leave policy—sabbatical as a special case. Let the employee go on sabbatical for some more months and rejoin at a later date. HR may need to find a replacement immediately.

Thank you for the prompt reply. I have a few clarifications.

Maternity Benefits and Employment Policies

Do we need to pay her the maternity benefits? I understand it is a valid reason for absenteeism, but being a cash-strapped SMB, we cannot afford to be generous in such cases. She has exhausted all her leaves. Earlier, there was a case where we had asked another employee to resign and rejoin in similar circumstances. However, she was a new recruit and had barely 1 year of experience. This occurred before I joined the company. To maintain fairness, I believe we should handle the current case in the same manner.

Gratuity Account Implications

If we ask the employee mentioned in the case to resign and rejoin, her gratuity account needs to be closed, and she will become eligible for gratuity only 5 years after rejoining, correct?

Please let me know if you need any further information.

Thank you for the prompt reply. Do we need to pay her the maternity benefits? The employee has a good track record. As you mentioned, I will discuss with management if the sabbatical policy will be feasible. If we are asking the employee mentioned in the case to resign and rejoin, her gratuity account needs to be closed, and she will become eligible for gratuity only 5 years after rejoining, right?

Based on the given facts, I suggest allowing her 3 months of paid maternity leave from the date of delivery. The remaining period of her absence can be treated as unpaid maternity leave or loss of pay leave, or deducted from any other leave entitlement she has.

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

Hello all,
This is to discuss a special case. An employee who has 7 years of experience in our organization is expecting. Due to illness arising from pregnancy, she started her leave in September 2012. So far, she has not returned. Her expected date of delivery is in June 2013.

Company Maternity Leave Policy

As per company policies, maternity leave is for 6 months—3 months paid and 3 months unpaid. We usually allow employees to start their maternity leave when they want; i.e., we don't enforce the 6-week before and 6-week after pregnancy restriction rule strictly to make the policy more employee-friendly.

Now, the employee has already completed 6 months of leave. Can we ask her to resign and rejoin after pregnancy? In this case, will she be eligible for maternity benefits? She has attained the 80-day eligibility limit as she was regular between June 2012 and August 2012, and she came a few days intermittently in between.

Please help.

I am surprised. How can anyone start leave from September '12 and the expected delivery date is June '13? There may be some typing mistake.

But sir, she has already completed the allowed 6 months. This is why we were keen on asking her to resign and rejoin.

Unethical Implications of Resignation and Rejoining

What are you gaining by asking her to resign and rejoin, except giving an unethical and arbitrary message to other women employees that whoever takes more maternity leave will be treated like that?

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

Purpose of Suggestion on Resignation and Rejoining

Under the Maternity Benefit Act, you are not allowed to terminate someone who is on maternity leave. What are you trying to save? Gratuity? Because nothing more is payable when she is on leave without pay. When she is in a position to rejoin, will you guarantee her a job? These are things you need to clarify internally and communicate to her.

That said, given her medical history so far, it is unlikely she will be able to rejoin immediately after birth. You are probably looking for her being absent from work until the next year. You need to arrange a substitute or replacement accordingly.

As per your query, how can you consider maternity leave from September 2012? According to the Maternity Act, you can consider maternity leave based on the expected date of delivery—before six weeks and after six weeks only. If a doctor suggests that the employee needs rest due to ill health, you cannot ask for her resignation. During that period, you can consider it as sick leave and make deductions if sick leave is not available.

Regards,
Srini

Clarification on Maternity Leave and Employment Policies

What is the purpose of your suggestion on asking for resignation and rejoining? Under the Maternity Benefit Act, you are not allowed to terminate someone who is on maternity leave. What are you trying to save? Gratuity? Because nothing more is payable when she is on leave without pay. When she is in a position to rejoin, will you guarantee her a job? These are things you need to clarify internally and communicate to her.

That said, given her medical history so far, it is unlikely she will be able to rejoin immediately after birth. You are probably looking for her being absent from work till the next year. You need to arrange a substitute or replacement accordingly.

In my earlier posts, I had mentioned that the employee has already exhausted her entire maternity leave of 6 months. My understanding is that when an employee is within the maternity leave period (6 months here), the employee cannot be terminated according to the Maternity Benefits Act. Correct me if I am wrong. So why can't we ask her to rejoin when she is fit? Ours is an SMB in a tier 2 city. We have great difficulty finding the right fit resource. The said employee has a good track record. Due to these reasons, I can assure her a position when she is fit to join.

Since we haven't faced such cases before, we may need to relook at our maternity policy. It was for this purpose I inquired about the gratuity. I am not trying to save anything, and I very well know that without making the policy transparent, it is not fair to cut the gratuity of the employee.

Regards

If she has a good track record and you have difficulty finding a replacement, allow her to rejoin duty after delivery and rest. Why do you want her to be terminated and rejoin as a fresh employee? That is bad HR practice.

Regards,
Varghese Mathew

I understand from the act that an employee is entitled to paid leave due to illness arising from pregnancy for one month if she can provide a doctor's certificate. However, she has exceeded this limit. As you mentioned, we have not strictly followed the '6 weeks before and after' rule for the convenience of the employee. However, we offer three months of paid leave, and the employee can avail it at her convenience. This practice is followed in many similar companies in our locality.

The said person has exhausted all her maternity leave, and she does not have any other leaves pending. So, isn't it at the discretion of the company whether to permit the employee to continue in Leave of Absence (LOP) or not? Of course, I understand that on humanitarian grounds, she may be allowed to go on LOP. But I am just asking if asked to resign now, will it be against the statute?

I understand that it is a bad HR practice. But is it against the statute is what I am asking. If she is on the rolls, don't we need to pay PF and Gratuity?

No, you need not pay PF if she is not paid a salary. The period of LOP will be non-contributory. If in any year she is not working for at least 240 days, including maternity leave not exceeding 12 weeks, she is not eligible for gratuity for that year as it is not continuous service. So, why do you worry?

Regards,
Varghese Mathew

Have you spoken to the employee? Is she updated with the status of work? Have you checked with her when she is likely to resume? I suggest speaking to her. If possible, one of her lady colleagues can visit her. That will send a message that the organization cares for her.

Also, while talking to her, you or her colleague will come to know her health condition and plan for resuming office. If she commits to a certain date, discuss it with her supervisor. If that date suits the organization, ask the employee to submit a written application for an extension of maternity leave. A written note from her will keep her looking for ways and help her determination to honor her commitment. A written document will serve as a good reference for future discussions on the matter and serve as a record.

If the organization is not okay with the time limit she is asking for, then make a decision. I think it is mandatory to give 6 weeks of rest (maternity leave) after giving birth to a child (6 months prior to the birth of the child will not suffice). Please check with a legal expert. Logically, a mother needs rest after giving birth for sure, and the law would have specified something for this.

So, my suggestion is to get as many details as possible, speak to the employee, and then decide on a course of action. Please don't presume things and do not make any decisions before speaking to the employee.

Hope my views and suggestions are practical and clear.

Regards,
Hiten Parekh

I now understand your dilemma. I understand from the act that the person who is on maternity leave (which includes unpaid leave on account of medical complications arising from the pregnancy) cannot be terminated. It would be against the law. Since she is good and you wish to retain her, I think you need to send her a letter offering her unpaid leave until 6 weeks after childbirth, assuring her that her job is safe and her seniority in the firm will remain intact. However, this will be considered a service break for gratuity purposes as she will not have worked for 240 days in the year. You do not have to pay her gratuity now. It's just that she will not get gratuity for the period she is on unpaid leave.

As someone suggested, go over to her house, meet her and her husband, inquire about her health, and offer whatever assistance you can. Find out what her plans are. Does she plan to return to work? What has the doctor suggested?

In my earlier posts, I had mentioned that the employee has already exhausted her entire maternity leave of 6 months. My understanding is that when an employee is within the maternity leave period (6 months here), the employee cannot be terminated according to the Maternity Benefits Act. Correct me if I am wrong. So why can't we ask her to rejoin when she is fit? Ours is an SMB in a tier 2 city. We have great difficulty finding the right fit resource. Said employee has a good track record. Due to these reasons, I can assure her a position when she is fit to join.

Since we haven't faced such cases before, we may need to relook at our maternity policy. It was for this purpose I inquired about the gratuity. I am not trying to save anything, and I very well know that without making the policy transparent, it is not fair to cut the gratuity of the employee.

Thank you all for your valuable suggestions, which were really useful. I had a discussion with the employee as well as management and have convinced the management to allow the employee to go on LOP without asking for her resignation.