Maternity Leave Dilemma: Should Earned Leave Accumulate During This Time?

Hi,

We are a small-sized IT company. We credit earned leave (EL) for the entire year in advance every January. Our employees are entitled to 1.5 EL days per month and 1 casual leave (CL) day per quarter.

My query is if a female employee proceeds on maternity leave mid-year:
- Will she be entitled to the earned leave for the same duration?

Please share your inputs.

Regards,
Gia

Your establishment is registered under which act? Shops & Commercial Establishments Act of which state or Factories Act. Is the employee in question covered under the ESI Act? Maternity benefit is paid by ESIC or by the employer under The Maternity Benefit Act, 1961. The above information is very much required to answer your query.

It would be best practice to provide EL entitlement during her Maternity Leave as well. It will not be more than 10 days in your case, even if she claims MB benefits as per the amended Act.

Thank you.

There was a discussion on this issue earlier, read here - https://www.citehr.com/513232-earned...ity-leave.html.

Maternity Leave and Earned Leave in Maharashtra

I presume the query is related to an establishment situated within Maharashtra. If yes, and the establishment is subject to the Shops & Establishments Act, see what the Bombay S&E Act says about maternity leave:

The Bombay Shops and Establishments Act, 1948

XXXXX

CHAPTER VII

"[हासाः. Application of Maternity Benefit Act for women employees in establishment.- Notwithstanding anything contained in the Maternity Benefit Act, 1961 (hereinafter in this section referred to as "the said Act"), the State Government may, by notification in the Official Gazette, direct that all or any of the provisions of the said Act or the rules made thereunder shall apply to women employed for wages in all or any of the establishments to which this Act applies. For that purpose, such women employees shall be deemed to be women within the meaning of the said Act. On such application of the provisions of the said Act, an Inspector appointed under this Act shall be deemed to be the Inspector for the purpose of the enforcement of the provisions of the said Act also within the limits of his jurisdiction.]" XXXXXX.

If this is correct, and the Maternity Act is applicable, we shall refer to the provisions of the MA as well:

Maternity Benefit Act and Leave Policy

The Maternity Benefit Act only talks about how the leave shall be granted and not how any leave-related issues should be regulated in the establishment, for which one should refer to the leave policy of the said establishment. By all means, since the Maternity Leave is an authorized leave and there is no break in service either, the period of 12 weeks allowable under the Maternity Act and availed by a female employee should be counted for the computation of EL/PL as for any other leave. Provisions under the ESI Act are different.

I have not come across anybody's leave policy which prohibits earning leave while on authorized leave, of course except while on study leave/extraordinary leave which does not earn EL/PL credits.

Hi,

The employee is not covered under ESI. We have covered her in Group Medical. You are right, Mr. Kumar. We are situated in Maharashtra and fall under the Bombay S&E Act.

Okay, I understand that EL should be given while the employee is on ML, but once she exhausts her ML and extends her leave availing LWP (leave without pay) for say 3-4 months, in that case, for the duration while she is on LWP, would she be entitled to the EL credit. Please do share inputs.

Regards,
Gia

Dear Gia,

No, she will not be entitled to EL. The EL, as the name denotes, first needs to be earned before the employee can avail of the leave. However, as per company policy, you can give all entitled and accumulated leave in a single instance. But if the employee is on LWP, in my opinion, he/she is not entitled to leave for that period.

Senior members can shed more light on the matter.

Employee will not be eligible for earned leave (EL) while on maternity leave. EL or leave is accrued only on days worked.

Maternity Leave and Gratuity Eligibility

It is a debatable issue: Maternity Leave is a paid leave and it is a benefit/privilege given to women. Hence, leave under the Maternity Benefit can be treated as days worked. Now, after the amendment of the MB Act, the Maternity Leave will be 26 weeks. If we do not count maternity leave as worked days, then any lady employee availing maternity leave twice in 5 years of her job in any particular company will not be eligible for gratuity, as she will not be working for 240 days during that period.

There is no reason why the employee should be deprived of earning leave during the period of availed of as maternity leave. The correct principle should be that the employee should earn leave for all the periods of leave duly applied for and sanctioned, except leave without pay.

Hi,

I completely agree that the female employee is entitled to accrue earned leave while she is on maternity leave. My query was simply whether she would be entitled to accrue earned leave while she has extended her leave, essentially as unpaid leave (leave without pay). Please share your insights on this particular aspect.

Thank you all for the valuable inputs posted so far.

- Gia

Understanding the Applicability of Various Acts

Some of you have mixed provisions of the Maternity Benefit Act, Payment of Gratuity Act, Shops & Establishments Acts, and Factories Act.

The period of maternity leave is considered as part of continuous service. When considering the applicability of continuous service under the Gratuity Act, one has to study the provisions under that act and no other act. As for the Shops Act, every state has its own provisions. In most states, it is based on days worked. In the Factories Act, it is based on days work performed - very specific.

Hi Friends,

I received feedback from some HR experts and wanted to share the update. Earned Leave is not granted to employees who are on Loss of Pay (LOP), regardless of whether it is an extension of Maternity Leave or for other reasons.

I hope this information will be beneficial to the forum.

- Gia