Maternity Leave Dilemma: How to Handle a Company Offering Less Paid Time Than the Law?

Hi,

Please advise on the maternity leave amendment. My wife applied for a 6-month leave as per the new law, but her company replied that they will only provide 3 months of paid leave, as they do not have confirmation for 6 months of maternity paid leave.

Please advise.

Thanks,
Rajesh

1. Sir, please confirm under which Act your wife is claiming maternity leave from her employer. Whether she is covered under the ESI Act, 1948 or not?

2. So far as I understand, the Maternity Benefit Act, 1961 has not been amended yet, and the eligible period under the said Act is still twelve weeks.

Dear Mr. Rajesh,

As per my understanding, the Maternity Act of 1961 was amended to provide for "26 weeks/6 months paid leave," but it has not been passed or gazetted by the Parliament or the relevant approving authority. Therefore, in this case, your employer cannot permit a 6-month paid leave as you mentioned.

Sir, please see the following separate threads on the same subject in which the position has been discussed in detail by seniors. I think the position regarding amendments to the Maternity Benefit Act, 1961, has not progressed further since no work was virtually done in the last session of parliament.

[URLs removed for security reasons]

The ESI has amended the relevant rules and made it 26 days. Similarly, the scope of the maternity benefit has been widened. According to the revised rules, the benefit to the extent of 12 weeks is available to the commissioning mother and adopting mother.

Please see the attachment.

Madhu.T.K

My daughter, who is employed in a private hospital, gave birth on 16.1.2017. She was discharged from the hospital on 20.1.17. She has already submitted her application for the grant of maternity leave starting from 16.1.2017. Since the new amendment extending maternity benefits to 26 weeks was notified on 20.01.2017, the question arises whether she is entitled to the full 26 weeks of leave, excluding the days already taken before 20.1.17, or if she may modify her leave to start from 20.1.17 instead of 16.1.17. If she is denied the extended benefit, it would amount to discrimination. The purpose of the new amendment is to provide adequate time to take care of the child, and denying a few days of leave would go against this intention.

Understanding ESI Leave and Maternity Benefits

For every enactment, there will be a cut-off point. Since the ESI Corporation has decided to extend the benefit of 26 weeks to those who deliver on or after 20th January, you have to follow that. Otherwise, employees who have been on ESI leave for 8 weeks preceding 20th January should also get it.

Again, when the delivery has taken place in a private hospital, what is the requirement of any ESI leave? ESI leave is given to those who follow ESI rules, and when there are facilities available in the ESI hospital, why was she admitted to a private hospital? Was she referred to a private hospital from the ESI Hospital?

Regards, Madhu.T.K

Maternity Benefit Payment and Reimbursement

Sir, I may submit that, regarding the payment of cash benefits, namely Maternity Benefit (MB), for the entitled period of such leaves, ESIC generally allows the payment of such cash benefits (MB) as an ALTERNATIVE EVIDENCE (AE) case. This depends on the facts of each case and the entitlement of the insured woman during the relevant benefit period. These powers, as far as I know, are vested with the Manager/Branch Officer and the concerned senior officer at the Divisional/Regional Office of ESIC. Therefore, even if delivery takes place in a private hospital, the period of maternity leave is generally sanctioned as an alternative case and paid, subject to confirmation by the employer regarding absence from work for the period of such claims. In my opinion, the insured woman/claimant can contact the concerned office as mentioned above along with the original certification of delivery, birth of child/fitness certificate, etc., issued by such a private hospital. If medical leave is still continuing, she can visit her ESIS dispensary and get the relevant certificate if allowed by the Doctor In charge.

Reimbursement of Medical Expenses

However, regarding the reimbursement of medical expenses incurred in a private hospital, such expenses, if the referral policy is not followed, are not reimbursed. However, there is a provision for reimbursement of Rs. 5000/- in confinement cases incurred at places where there are no ESIS facilities (viz. non-implemented areas) (please see Rule 56-A of ESI (Central) Rules, 1950).

Regards

Only a very few companies have implemented the Act, while the rest remain unchanged.

Maternity Leave for Third Child

One of the employees is requesting maternity leave for her third child. I would like to inquire about the payment of salary during the maternity leave period. From what I have seen, the rules mainly apply to the first and second pregnancies only. Will she still receive 12 weeks of leave as it's her third child?

Maternity Leave for New Employees

The second query involves a staff member who joined the organization in August and got married in October 2016. She is currently expecting her first child. I would like to know what the law says regarding this situation. This news was received around December. I believe there is some mention of a 160-day period in the maternity law. Can anyone please enlighten me on this matter?

Regards, Ganesh Krishnan

Today, I called ESIC. They told me that they did not receive any circular regarding maternity leave extension.

Maternity Benefit Act Amendment: Key Changes

The proposed amendment in the Maternity Benefit Act provides for 26 weeks' leave for two deliveries only and 12 weeks' leave for more than two childbirths. The parent Act had no restrictions regarding the number of children. Therefore, the employer was obliged to provide 12 weeks of paid leave without considering the number of deliveries or the number of living children.

A female employee, whether married or unmarried, is eligible for maternity leave if she has worked for 80 paid days (not 160 as it was before) during the 12 months immediately preceding the expected delivery date. The interpretation of "during 12 months" has always been a point of contention. In my understanding, it should be interpreted as follows: the employee must have completed 12 months of service, during which she should have worked for 80 days to qualify for maternity leave. Looking at the conditions for maternity leave under the ESI Scheme, one can see that eligibility for 12 or 26 weeks' leave requires contributions for at least 70 days in two contribution periods (equivalent to 12 months).

Moving on to Roy Amrita's concerns, please share the circular attached in my previous post with the relevant local office. Many offices still lack internet access, making it difficult for them to access circulars issued by their headquarters. However, they may have received illogical and ironic WhatsApp messages about this!

Regards, Madhu.T.K

It depends on the company and its leave policies. Do check for any updates before applying for leave, as this can help you access the right benefits.

Maternity leave

How many days can an employee take off post-delivery and pre-delivery? Can you please explain?

Dear Jayant, I would like you to go through the amended provision of sec. 5(3) of the Maternity Benefit Act, 1961, effective from 01-04-2017.

Maternity Benefit Details

The maternity benefit comprising 26 weeks of absence with salary is divided into two parts with reference to the date of delivery: the pre-delivery leave of absence is 8 weeks prior to the expected date of delivery, and the post-delivery leave shall be 18 weeks from the actual date of delivery.

It can also be taken at a stretch for 26 weeks from the actual date of delivery, and the choice is that of the employee's only.