Navigating Maternity Leave for an Unconfirmed Employee: What Are Our Obligations?

Hi All, we have a new lady who joined our team in November 2016. She was supposed to be confirmed in May 2017; however, due to some unavoidable reasons, her confirmation review took place in June, and her confirmation was extended as her performance was not up to the mark. She will be reviewed again in August. Upon learning this, she shared with us that she is five months pregnant and will be going on maternity leave starting October 2017. She intentionally did not inform us earlier, thinking that the company would not confirm her. Now, she is requesting six months of maternity leave, which she is not eligible for as she falls under the old maternity act, allowing for 12 weeks only. In this scenario, where she is not confirmed in the organization, what actions should be taken? Is the organization obligated to pay her maternity pay and benefits?

Kindly provide guidance.

Dear Kavita,

Please note the following:

a) Maternity benefits do not depend on whether the employee is confirmed or not. Deciding whom to confirm and whom to keep under probation is an internal matter of your company. You cannot link it to maternity leave.

b) You have written that "Now she wants 6 months maternity which she is not eligible for, as she falls under the old maternity act which is for 12 weeks." Would you mind educating us on under which clause of the Maternity Benefit Act, 1961 (as amended in Mar 2017) you have reached this conclusion? It is time for you to come out of the regime of self-made notions and educate yourself on the amendments of the labor laws.

c) She is perfectly eligible for the maternity leave of 26 weeks. If you fail to sanction her maternity leave or terminate her close on the heels of the second trimester of her pregnancy, then be prepared for legal reprisal.

d) The penultimate sentence of your post reads "she is not even confirmed in the organization." In your organization, is secondary status given to the employees until they are confirmed? If yes, then it is against the principles and practices of HR Management.

Thanks,

Dinesh Divekar

Dear Kavita,

First of all, don't assume that she did everything intentionally. You appointed her in November 2016, and by June 2017, she informed you that she is five months pregnant. This means she became pregnant only after January 2017, i.e., after joining the company.

Second, if you are in HR or if someone in your organization serves as HR, please review the Maternity Benefit Act to determine whether she is eligible according to the Act. The Act doesn't state that it is only applicable to confirmed employees.

Third, you mentioned that she falls under the old Maternity Act. I understand that you believe the new amendment is applicable to employees joining after the amendment date. You are wrong. The new amendment is applicable to all employees irrespective of their joining date.

P.S.: Just check whether she is covered by ESI. If yes, then she can claim salary from ESI.

Confirmation and Maternity Leave Eligibility

Ms. Kavita, when she completes 240 days of working in your organization in a year or 480 days in two years, she automatically receives confirmation as per the law. Additionally, upon completing 80 days of work in an organization, she becomes eligible for Maternity Leave under either the ESIC Act or the Maternity Benefit Act of 1961, depending on her salary. Therefore, the organization is obligated to fulfill her request for a 26-week Maternity Leave. There is no ambiguity in this matter.

Regards, V. MURALI

[Phone Number Removed For Privacy-Reasons]

There is no dispute that she is eligible for maternity leave of 26 days. However, I differ from V Murali's statement that an employee gets confirmed automatically once he/she completes 240 days of service in one year or 480 days in two years. The latter condition of 480 in 2 years is irrelevant if one is to get confirmed in one year. I have not come across any such legal provision under any law. There can be some departmental rules or orders in the Standing Orders of the company which mention automatic confirmation, but under normal circumstances, an employee becomes confirmed only when he is communicated of his confirmation in writing, and there is no automatic confirmation. Anyway, this is not relevant in the present discussion because the issue is not with regard to confirmation but with regard to the eligibility of a woman employee for maternity leave just due to the reason that she has rendered 80 days of service. I hope she should have 80 days of working since she joined the company sometime in November 2016.

Now, I would like to draw your attention to what section 5(2) of the Maternity Benefit Act says: "No woman shall be entitled to maternity benefit unless she has actually worked in an establishment... for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery."

It is worth analyzing the meaning of "in the twelve months immediately preceding the date of delivery." Why don't we interpret it as a service of twelve months with at least 80 days of attendance before childbirth being mandatory for eligibility? Now, if you see the eligibility conditions under the ESI Act, you will find that in order to be eligible for maternity benefit, a woman should have contributed (means worked, earned wages, and paid contribution) for at least 70 days during two contribution periods, i.e., one year. There is a waiting period of one year for getting eligible for maternity leave. If you read the same along with section 5(2) of the Maternity Benefit Act, I also doubt that 12 months with 80 days minimum service should only qualify for maternity leave.

I am unable to find any case law in support of my above interpretation, but I wish you will comment on it very positively.

Madhu.T.K

Dear Madhu.T.K, I appreciate your observations.

Confirmation of services for maternity leave

The basic question raised pertains to the confirmation of services of an employee by Ms. Kavita for the granting of maternity leave (ML).

Please refer to the ID Act 1947 for the statement which I made. Furthermore, the twelve months referred to here are specific to her case, i.e., she has been working since November '16 and intends to avail ML from October '17 only. Therefore, one year includes the two contribution periods of April-September and October-March covered under ESIC. Additionally, if the employee was already under ESIC with another employer before joining this organization, this facility should be extended. Hence, let's consider the case from a Human Resources Professional perspective, even though we may not have all the case facts as this forum serves as a platform for the exchange of views and opinions to enhance HR functions.

V. Murali

Dear Kavitha,

She is perfectly eligible to receive all benefits under the protection provided by the Maternity Benefit Act and other labor laws, including leave, advance, and medical care, equal to regular employees. According to existing laws, all protections should be extended even to daily laborers and contract workers. I agree with Mr. Divekar's explanation. There is nothing wrong with offering benefits through your company with a broad perspective, rather than being overly strict. We cannot predict when pregnancy will occur; it is a natural process not easily discernible by others. Therefore, handle the situation smoothly and think positively. If a male had asked this query, the response might differ.

Thank you.

Dear all,

Can you explain to me the meaning of the following line: "nominee - In case of death, maternity benefit can be availed by her nominee or her legal heir."

Lingappa

Employer's Obligation During Maternity Leave

Employers are expected to pay the salary for the days a woman employee remains on maternity leave. If, for any reason, the woman employee dies during her maternity leave before she is paid the salary and/or maternity bonus (Rs 3500), the employer must pay the leave wages and maternity bonus amount to the legal representatives. This payment is to be made up to the date of the employee's death only.

At the same time, if the death occurs during or after childbirth and the child is alive, the employer is required to pay the legal representatives benefits for the entire period. This means the employer must pay for the remaining period of maternity leave, which they would have been liable to pay if she were alive and remained on leave.

Regards, Madhu.T.K

Dear Kavita,

Please go through the clarification provided by the government via a circular. It is in the thread whose link is given below: https://www.citehr.com/583088-extend...ml#post2357953. You will have more clarity on the subject.