Maternity Leave Confusion: Am I Eligible for 26 Weeks Without ESI Coverage?

Hello, I am not covered under ESI scheme because my salary is higher than Rs. 21,000. Will I be entitled to paid Maternity leave? If yes, will I be benefiting from the new rule providing 26 weeks of paid maternity leave.

Thank you.

Yes, you will be covered provided you worked for 80 days during the preceding 12 months. However, the amendment was only passed by the Lok Sabha and is yet to come into force as it has not been notified yet. The date from which it becomes enforceable will be known through a gazette notification.

B. Saikumar
HR & Labour Law Advisor
Navi Mumbai

There is a difference between maternity benefit and maternity leaves. As per the Maternity Benefit Act, no employee is entitled to maternity leaves; it is at the company's discretion. You are entitled only to the Maternity Benefits.

As rightly said by Mr. Sai Kumar, the bill has been passed in the Lok Sabha, and there is no gazette notification. According to the current act, you are entitled only to 12 weeks. Once the gazette notification is released, there will be more clarity.

Thank you very much for your response. Can the company refuse to provide me with paid maternity leave?

I didn't understand what Jeevarathnam meant by saying, "As per the Maternity Benefit Act, no employee is entitled to maternity leave. It is the company's discretion. You are entitled only to the maternity benefits." It is understood that maternity benefits and maternity leave are different, but the latter is one of the benefits of the former concept. The other benefits include providing only light work, payment of medical bonuses, not dismissing employees, etc. But where is it stated that no employee is entitled to maternity leave and that granting leaves is the company's prerogative?

Again, the attachment by Sam Verma does not pertain to amending the Maternity Benefit Act but is a notification amending the provisions related to maternity leave in the ESI Rules.

Madhu.T.K

Additional Maternity Leave Policies

There are a few companies that allow additional maternity leave, which is above and beyond the stipulated leave provided as a maternity benefit. Currently, the maternity benefit is for 12 weeks, and companies provide paid maternity leave to take care of employee health and their baby. Anything provided in addition is at the company's discretion and is part of the organization's policy, which is not mandated by the Maternity Benefit Act.

Once the Maternity Benefit Act is amended, even the existing organizational policy may need to be revised in line with the Maternity Benefit Act or to offer better benefits.

But is it not mandatory for the company to provide paid maternity leave to employees regardless of the salary earned?

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But is it not mandatory for the company to provide paid maternity leave to employees regardless of the salary earned?

It is mandatory to give paid leave of 12 weeks (with the amendment to 26 weeks) with pay to all eligible women workers (meaning those who have worked for 80 days in the 12 months preceding the date of delivery). It is also mandatory to give 12 weeks of leave to all commissioning mothers and all mothers who adopt a child less than 3 months of age.

Madhu.T.K

Reading the discussion above, I realized there is a lot of confusion regarding the applicability of ESI, Maternity benefits, etc. I have tried to address some pertinent questions here by discussing both the ESI Rules 1950 and the Maternity Benefit Act 1951.

Maternity Benefit Act

Q. Which employees are covered under the act?

A. There is NO definition for "employee" in the Maternity Benefits Act. The definition is provided for the term 'woman'. In Sec 3(o), "woman" means a woman employed, whether directly or through any agency, for wages in any establishment. As such, all women are covered under the provisions of the act, provided they have worked for 80 days in the preceding 12 months. To calculate the number of days worked, approved leave days and holidays with wages are to be taken into account. (Sec 5(2))

Q. Is there a wage limit for such coverage?

A. No. All women are covered.

Q. What is the quantum of leaves?

A. 12 weeks, of which 6 weeks can be before the expected date of delivery.

Q. To which establishments is the act applicable? Is there any limit on the number of persons employed?

A. For factories/mines/plantations/Govt establishments - Even if one person is employed.

For shops & commercial establishments - where a minimum of 10 persons are employed.

ESI Act (only for women covered under the act)

Q. Are all women covered?

A. No, only insured women are covered. The advantage for women covered under the act is that they don’t have to meet the 80 days criteria in the immediate preceding 12 months. She has to be an employee for whom contributions were paid for 70 days in the immediately preceding two contribution periods (12 months) as per ESI Rules 1950 clause 56: "if the contributions in respect of her were payable for not less than seventy days in the immediately preceding two consecutive contribution periods."

Q. Is there a wage limit for such coverage?

A. Yes. Rs 15,000 till Jan 2017 and Rs 21,000 from now onwards.

Q. What is the quantum of leaves?

A. 26 weeks, of which 8 weeks can be before the expected date of delivery.

Q. If I draw a salary above 15,000 but less than 21,000 and consequently got coverage from January 2017 onwards, am I eligible for 12 weeks or 26 weeks of maternity leave?

A. 12 weeks only, for which you are entitled under the 'Maternity Benefits Act'. ESI maternity benefits will be applicable to you from January 2018 only.

My query is if any female employee has taken maternity leave for 6 months in a particular year, will she get the benefit for leave encashment or to carry forward for that specific year?

Also, if any female employee has taken maternity leave for 6 months in consecutive years, will she get the benefit for leave encashment or to carry forward?

An employee will be encashing or carrying forward her earned leave only. That right is not denied just because she has had 6 months of maternity leave. Maternity leave is a separate kind of leave meant for a particular purpose and cannot be used for other purposes. At the same time, earned leave is leave earned by working for certain days and can be availed/utilized for any purpose or carried forward to the succeeding year, or encashed subject to conditions as per the contract of employment or standing orders. If a woman employee has earned leave to her credit, she can very well encash it or carry it forward even if she had 6 months of maternity leave.

Please note that earned leave is leave earned by means of being physically present for work. Though through work eligibility, the days an employee remains on authorized leave will be considered days worked, for these leave days, she/he will not earn any leave. Naturally, a woman employee who was on maternity leave for six months in the preceding year, say, 2021, shall get only a very small amount of earned leave in 2022, i.e., leave proportionate to the days she was physically present in 2021.