Am I Eligible for Paid Maternity Leave While on Probation? Seeking Clarity and Advice

Dear all, I have joined a medical firm on 1st April 2013. On 30th April, I found out that I am four weeks pregnant and have been prescribed bed rest for six weeks. My HR department said that I can take leave without salary because I am on probation. Could you please clarify if I am eligible for paid maternity leave?

Kindly assist me with this matter.

Thank you.

Your HR may be right in this case. Usually, all leave benefits are given after the completion of the probation period only. As you have a very genuine reason, and if it is agreed upon by your company, you can take leave without pay. Also, ask them if you'll be available as a freelancer if there is a need.

Regards,
Shreya Parikh (HR)

But my question is whether I am eligible for paid maternity leave or not.

If company policies state that leave benefits are granted once you complete your probation period, then you cannot take it as paid leave.

Eligibility for Maternity Benefits Under the Maternity Benefits Act of 1961

Being on probation has nothing to do with the benefits under the Maternity Benefits Act of 1961. Whether one is a trainee, probationer, or confirmed employee is a matter between the employer and the employee and is not a criterion for determining one's eligibility under any statutory law, including the Maternity Benefits Act of 1961.

Under the Maternity Benefits Act of 1961, the sole criterion for determining eligibility is that "the concerned employee should have worked for that particular employer for at least 80 days in the 12 months immediately preceding the date of her expected delivery."

If you meet the above criterion, you are eligible for the benefits; otherwise, you are not eligible.

Regards,
Kamal P

As per Kamal's discussion, if you have worked for 80 days in the 12 months prior to the date of delivery, then you will certainly be eligible. However, based on the information provided, it appears that you only worked for 1 month before going on bed rest. Therefore, you will not be entitled to paid leave.

Regards,
Rakesh

Apart from what Mr. Kamal has stated, I would like to add that Maternity Leave is available 6 weeks before the expected date of delivery and 6 weeks post-delivery. So, in that case, if your probation period is 6 months, then it would be completed by 30th Sept. 2013. You are a confirmed employee from 1st October 2013.

Please let the forum know if the probation is more than 6 months or not. Even if it is more than 6 months, you are still eligible for Maternity Leave for 6 weeks before the expected date of delivery.

The confirmed full-time employees are eligible to get paid maternity leave, and that depends on the company rules and regulations. Kindly, you can discuss this query with your HR department, and you will get a better solution.

Regards

Clarification on Maternity Leave Eligibility

What Kamal has stated is right if the 'Anonymous' is not covered under ESI. Under the MB Act, even to get leave with wages for sickness arising out of pregnancy (she mentioned about bed rest), she should work for 80 days during the 12 months before the delivery. The condition for this under the ESI Act is 70 days during the two contribution periods before delivery. Probation is immaterial under labor laws.

Regards,
Varghese Mathew

[Phone Number Removed For Privacy Reasons]

Could you please let me know the exact date you're planning to start your Maternity Leave? This information will help us assist you better.

Thank you,

B. Janga Reddy

Well, I do not think any company will provide you paid leave in this situation as you have just started working there. Also, most often companies offer maternity leave to employees who have already completed at least one year with the company.

So, in short, the employer will not allow paid leave for you but may ask you to leave and look for other resources. What you can do is request your employer to offer you some flexibility in work and allow you to work from home. If they find you really skilled and do not want to lose you, then hopefully they will allow for the same.

First of all, please note that the leave you need cannot be termed as "Maternity Leave." Maternity leave is granted to a female employee who is in an advanced state of pregnancy or has undergone an unfortunate miscarriage, with specific ceilings for each. The leave you require is a normal kind of leave, probably by producing a medical certificate necessitating absence from duty, which is to be treated based on the normal leave rules of your organization. At best, you can get leave with pay to the extent of credit available, followed by leave without pay. Since you are on probation, there is a possibility that your probation may be extended.

I suggest that you convince your management to permit you to be absent for the specified period by providing proper records. If you look at it from the organization's point of view, there will be a loss of productivity, extra expenses (to employ a temporary person during your absence), etc. In my opinion, your organization is definitely empathetic towards you, and this should be appreciated by you by not extending your leave of absence and rejoining duty.

Maternity Benefit Act, 1961: Eligibility Clarification

As per the Maternity Benefit Act, 1961, eligibility requires that a woman must have worked for her employer for at least 80 days in the 12 months immediately preceding the date of her expected delivery, with six weeks before and six weeks after the delivery.

Let's be clear: this requirement has nothing to do with probation. Even during probation, if deductions for ESIC were made and remitted to the ESIC office, and the woman worked for 80 days in the preceding 12 months, she will be eligible for maternity leave with paid leave. The Maternity Act is not related to the probation period.

Hope this clarifies.

Regards

Your question is valid. Please note that if the company has started deducting ESI and PF from the date of your joining, you are entitled to ESI benefits as per the act. It is a question of Maternity Leave, not just regular leave, as the leave policy is different in this case. You will receive payment from ESI for your absence from work, but for that, the employer has to certify that you are on Loss Of Payment from the company.

If you have any doubts, you can visit the ESI office near your hometown and seek clarification.

Thank you.

As you have mentioned in your question, you worked for only one month before the doctor advised you bed rest for 6 weeks. In this case, please note:

1. The probationers are not entitled to paid leave except Casual Leave on a pro-rata basis.
2. Maternity Leave has nothing to do with a probationer or trainee. As rightly informed earlier, you should have worked for at least 80 days in a calendar year prior to the expected date of delivery. Maternity leave is allowed for pre-natal and post-natal care of the mother and the child. It is not always the case that it is given for 6 weeks before and 6 weeks after the expected date of delivery. It may vary depending on the advice of the doctor or the need of the female employee. There is a provision of special leave up to one month beyond the period of 12 weeks on the specific recommendation of the doctor.

So I feel that your query has been answered to your satisfaction by all. Best wishes.

Regards,
AK Jain HR Personnel NCL, CIL

Maternity Benefits Eligibility Under The Maternity Benefit Act 1961

According to Section 5 of The Maternity Benefit Act 1961, any woman employee (regular, probationer, or trainee) who works for 80 days in the preceding 12 months immediately before the date of her expected delivery shall become eligible to receive maternity benefits under this Act. As you have been advised to go on bed rest, you can also apply for this benefit.

Furthermore, as per Section 10 of the Maternity Benefit Act, an employee, in the case of illness arising from pregnancy, delivery, or premature birth of a child, upon providing the required proof, is entitled to additional leave with pay for a maximum period of one month.

Regards,
Jaspal
Indian Navy

Maternity Benefits and Case Law Discussion

Here is a case law that advocates for maternity benefits even when the service conditions state that the Maternity Act is not applicable to an employee. Although the case law does not fully address the 80 days service criteria, it is relevant to the Fundamental Rights concerning a pregnant woman's right to safety.

Let us discuss this: What if the pregnancy is jeopardized due to the non-granting of her "rest" leave? Who would stand the test of the law regarding the consequences if an unwanted incident were to take place in the workplace while the person is on duty? This question is likely being addressed in this case law. Please go through the attachment. 

Though the Maternity Act does not specify that those with less than 80 days of service should not be granted maternity leave, it may be right to consider her ensuing service after the leave days based on the Constitutional provisions as considered in the case law.

Regards

I have a query: What if a female employee has worked for 80 days in the 12 months immediately preceding the date of expected delivery, but her ESIC contribution is not deducted by the employer (neither Mediclaim)?

Eligibility for ESI Benefits

If she was insurable under ESI, she will receive benefits from ESIC even if the employer did not deduct or pay the contribution. This is provided under Section 68 of the ESI Act.

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

Yes, Mr. Kamal P is correct. The actual eligibility requirement is that the member should have worked for at least 80 days from the expected date of confinement within one year from the date of joining.

Regards,

I want to know if one of my employees went on maternity leave. I want to know if PF should be deducted during maternity leave or not. Should I register her name in the Salary register or not.

Maternity leave has nothing to do with probation. If one is pregnant, the eligibility is there, but maternity leave is given for delivery time. In this case, the offer of leave on loss of pay can be accepted. Private companies tend to get rid of employees who are pregnant (though against the law). This offer should keep both parties happy.

Sir, I need to apply for maternity leave. How many weeks before should I apply?

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Sir, I need to apply for maternity leave. How many weeks before should I apply?

Considerations for Maternity Leave

There are two things to consider:

1) Whether you are covered under the ESI Act or the Maternity Act. Please check this and confirm.

2) Obtain a certificate from a Registered Medical Practitioner mentioning the facts and likely date of delivery.

Isn't it possible for you to wait a little longer? The amendment to the Maternity Act is expected soon, and you should take advantage of any favorable provisions that may be forthcoming. I wouldn't suggest taking a risk, but if possible, consider waiting. In any case, you can avail of 6 weeks of Maternity Leave before your expected delivery date (prenatal) and another 6 weeks after the delivery (postnatal). Make sure you have informed your employer in the prescribed form as required. Please refer to the Act for necessary compliances promptly.

Maternity leave and benefits for industrial employees in India are governed by the ESI Act or MB Act. It has nothing to do with confirmation. If any company is allowing maternity benefits after a year, it is a violation of the law.

Mr. Varghese, my EDD is 30th May, and I want leave from 1st May onwards. When should I apply for leave? Is there a specific format or form for the same? Also, please advise on what needs to be taken care of when the employer is not willing to sanction maternity leave.

Eligibility for Maternity Leave Under ESI and MB Act

If you are covered under ESI and eligible for maternity leave under it, approach your ESI doctor. They will issue a certificate of absence. Submit it to your employer and the ESI branch office. ESI will provide you with medical and cash benefits. Your employer cannot deny leave or terminate you for your absence.

If you are not covered under ESI, you will receive benefits from your employer under the MB Act, provided you worked for them for 80 days during the 12 months prior to your Expected Delivery Date (EDD). You should submit a medical certificate from a Registered Medical Practitioner (RMP) and apply to your employer for leave with the certificate. Your state may have a prescribed format for the certificate, which should state the EDD. You are eligible for 6 weeks of leave with wages before delivery and 6 weeks of leave with wages after delivery. You may apply before 6 weeks of EDD. Additionally, you will be eligible for one month's leave with wages for any sickness arising from delivery.

Dear Potkar,

Maternity leave, being a paid holiday, the salary for the duration paid or payable (salary earned), should account for EPF contributions like any other paid leave, such as EL/PL or sick leave.

Maternity leave during the probation period depends on company policies. If your paid leave begins during the probation period, then you can take it.

Maternity Benefit Calculation for Daily-Rated Employees

A daily-rated employee works and is paid for around 24 to 25 days in a month, excluding Sundays and holidays. Should the maternity benefit be calculated/paid for 25 days in a month or for the full 30 days? If we pay for the full 30 days in a month, then she will receive a higher salary compared to other working individuals within this specific period.