Navigating Pregnancy Disclosure: What Employers Need to Know About Legal and Ethical Boundaries

Scenario Analysis: Employee Pregnancy Disclosure

1. An employee joins us on March 31 and did not inform us that she is pregnant.
2. She was pregnant from February 1 (60 days) before joining us.
3. When she joined us, she did not disclose her pregnancy.
4. We did not ask her if she is pregnant (i.e., neither did we ask, nor did she tell us).

Legal and Ethical Considerations

Q1- Is it legal in India to ask female employees, "Are you pregnant?"
Q2- Are female candidates expected to disclose their pregnancy to a new employer without being asked?

Employment and Payment Obligations

Q3- In the above scenario (1, 2, 3, 4), are we obligated to pay such an employee for 3/6 months of payment (as neither we asked, nor she told us herself)?

Handling Misrepresentation

Q4- What if we ask a candidate if she is pregnant, and she says she is not, but in fact, she is (i.e., she lies to get the job)? What type of proof (with witnesses) do we need to keep as a record in her personal file of this conversation that she told us she is not pregnant?

Verification of Pregnancy

Q5- What medical proof can be asked to determine the exact date of pregnancy (i.e., doctor's certificate)?

Eligibility for Paid Leave

Q6- If a female becomes pregnant on February 1 with employer X (previous employer) and joins us on March 31, is she eligible for paid leave from us (i.e., she conceived while she was not working for us)?
Q7- Who determines if the paid leave will be 3 months or 6 months?

Dear Appleboycat, the replies to your questions are as below:

Q1: Is it legal in India to ask female employees, "Are you pregnant?"

Reply: - Employment of a woman depends on her pregnancy, provided the nature of her job is hard, like lifting weight or working at high-rise buildings, as in the case of construction workers or cabin crew of airlines, where she needs to work at high altitudes and may not be fit for such work. In such cases, the employer needs to mention medical requirements in the Job Description (JD) of the position clearly. Otherwise, there is no need to ask such a question. However, unlike the USA or other Western countries, India does not have an explicit law that prohibits asking personal questions to a job candidate in the selection process.

Q2: Are female candidates expected to disclose to a new employer that they are pregnant (without the employer asking this question)?

Reply: - No need for disclosure. She can read the JD of her position and determine whether the work can impact her pregnancy.

Q3: In the above scenario (1,2,3,4), are you bound to pay such an employee for 3/6 of the payment (as neither we asked nor she told us herself)?

Reply: - Every pregnant woman who completes 80 days of continuous employment is eligible for 26 weeks of maternity leave. It is incumbent on the employer to sanction her maternity leave under the provisions of the Maternity Benefit Act, 1961, or the ESI Act applicable to the respective state of India.

Q4: What if we ask the candidate if she is pregnant, and she says she is not, but in fact, she is (i.e., she lies to get the job)? What type of proof (with witnesses) do we need to keep as a record in her personal file of this conversation that she told us she is not pregnant?

Reply: - Pregnancy, if it does not impact the work, then neither the employer needs to ask this question, nor does the job candidate need to disclose it. Pregnancy is the private matter of the woman employee. Please note that barely a month ago, the Supreme Court gave a verdict affirming that the Right to Privacy is a fundamental right, intrinsic to the right to life. Click the following link to refer to the news about this verdict: Supreme Court: Right to Privacy is a fundamental right, it is intrinsic to the right to life. Please note that the right to privacy was enshrined in the constitution of India, and the Supreme Court has just affirmed it.

Q5: What medical proof can be asked to find out the exact date of pregnancy? (i.e., doctor certificate)

Reply: - On completion of the first trimester, a woman employee is expected to provide a certificate from a certified medical practitioner (gynecologist) confirming her pregnancy. If the woman is covered under the ESI Act, then the certificate is to be obtained from an ESI doctor.

Q6: If a female becomes pregnant on Feb 1 with employer X (previous employer) and joins us on March 31, is she eligible for paid leaves from us (i.e., she conceived while she was not working for us)?

Reply: - Yes, she is eligible as she has completed 80 days of employment by now. The Maternity Benefit Act, 1961, or the ESI Act does not mandate that to avail of maternity leave, the woman employee must work under the respective employer who will sanction her leave.

Q7: Who determines if the paid leaves will be 3 months or 6 months?

Reply: - The Maternity Benefit Act, 1961, as amended in March 2017, determines whether a woman is eligible to get 12 or 26 weeks of maternity leave. For the pregnancy of her first two children, she is eligible to get 26 weeks of maternity leave, and from the third onward, 12 weeks.

Thanks,
Dinesh Divekar

Dear Appleboycat, at the outset, I wish to point out that all your queries stem from your generalization that the pregnancy of a woman at the time of her recruitment is a bar on employment and that the voluntary disclosure of the fact of pregnancy, with or without medical evidence, is a must. I think it cannot be so unless otherwise stipulated as one of the conditions by the employer based on the specific nature of the job to which she is to be selected.

If your queries are based on the presumption that by denying employment to a pregnant woman, the employer can be legally relieved of the burden of paying her maternity benefits under the Maternity Benefit Act, 1961, my answer to the queries is 'NO' only. The MB Act prescribes the conferring of maternity benefits to a female employee only in the event of childbirth, miscarriage, or medical termination of pregnancy, subject to her actually working for not less than 80 days in the same establishment preceding the date of such occasions.

A woman knows she is pregnant after 45 days (assuming), when her menstruation cycle is skipped. Many women, due to various reasons, might not be aware of these conditions. Additionally, confirming the pregnancy and setbacks can occur in the next 15 to 25 days.

There is no question of discussing pregnancy and managing it during this period. Attending an interview and being selected for a position have no connection to the workplace regarding pregnancy. The selection procedure is based on skills, knowledge, academic excellence, work interest, etc. Neither are you necessarily interested in the pregnancy status of the woman, nor does the woman need to disclose her pregnancy for a transparent interview and selection process.

Therefore, when she completes the training period after six months, she is entitled to maternity leave. Allow her the eligible leave and do not lose the candidate due to these questions.

Let me clarify some issues:

1) If an individual (particularly a woman) attends the UPSC exam and is selected for IAS/IPS/IPS training but is found pregnant, what will the authorities do during the advanced stage of pregnancy?

2) If a woman police officer is found pregnant at four months but was selected when she was fit for the post, what will the authorities do?

3) When a woman was selected for a position in an IT company before marriage, and later got married and became pregnant three months into the job, receiving a posting to a faraway place, what will the company do? She is intelligent and academically well-qualified.

"Pregnancy is a natural process; it should not affect selection decisions. Organizations need to rearrange and not view pregnancy as an obstacle." Praise motherhood and do not question it, considering time and other factors.

Dear Friend, many companies have a medical history form to be filled out by male and female employees along with the joining report. This form contains details about the disclosure of pregnancy at the time of joining. The employees are required to disclose their medical details in the form.

Not allowing selected female employees to join may get the company into trouble. This has to be done very discreetly and smoothly. You can also create the medical history form (if you do not already have one) and make it a mandatory part of your employee joining kit. Mr. Divekar and Mr. Umakanthan have already provided sufficient details.

Warm Regards,

Bharat Gera HR Consultant [Phone Number Removed For Privacy-Reasons]

This is one reason why we get the pre-joining medical examination. It is not just for females but for every employee who joins an organization. One must check whether or not the employee is medically fit to join work. This should be the solution for you to keep a record as well as to judge whether or not to continue with the candidate and also as a reference point in case the employee gets unwell at any given time - medical assistance will be easy then.

I would like to add to the checklist of joining formalities, especially for female employees regardless of marital status, that we should explain the benefits to female employees under the Maternity Benefits Act and any other related benefits as per company policy.

I think the employee herself will realize that if she wants to avail of such benefits, she should disclose the fact.

Regards, Amit

Legal Questions to Female Employees

Q1. It is not legal to ask such questions to women employees.

Disclosure of Pregnancy to Employers

Q2. Disclosing her pregnancy to the new employer is her decision.

Eligibility for Maternity Leave

Q3. Every pregnant woman who completes 80 days of continuous employment is eligible for 26 weeks of maternity leave. If she has not completed her 80 days of tenure, you can terminate her for other reasons. If she is an employee covered by ESI, there will be no issue, and the management can suggest she utilize ESI facilities for benefits.

Application Form and Privacy

Q4. In the application form provided by the company, you can include a column for the marriage date. By having this column, you can potentially ask related questions. If she indicates she is not pregnant, you can mark 'Y' for Yes and 'N' for No next to the date. As this pertains to the privacy of the female employee, you should maintain records in this manner.

Requesting Medical Certificates

Q5. You are not allowed to request any medical certificates regarding this matter.

Reference to Previous Answers

Q6. Refer to the answer for Q3.

Maternity Benefit Act

Q7. The Maternity Benefit Act of 1961, as amended in March 2017, determines whether a woman is eligible for 12 or 26 weeks of maternity leave.