Navigating Maternity Leave Rules: Can I Take All 6 Months After My Baby Arrives?

Dear sir/madam,

I work at an automotive company. I do not want to take maternity leave before childbirth. I would like to take 6 months continuously after the birth of my child. However, when I discussed this with my company, they informed me that we have a company rule stating that I must take 3 months before delivery and 3 months after delivery.

I spoke to an ESi doctor, and they mentioned that they only refer to the delivery 2 weeks before the due date. They suggested that I can take 6 months continuously, including that 2 weeks.

Could you kindly suggest what I should do now?

Maternity Leave Amendment

The requirement of apportioning the maternity leave into 50% each before and after delivery has since been amended and is explained as follows:

"The maximum period for which any woman shall be entitled to maternity benefit shall be 12 (revised to 26 weeks from 01.04.17) weeks in all, whether taken before or after childbirth. However, she cannot take more than six weeks before her expected delivery. Under the MB Amendment Act 2017, this benefit could be availed by women for a period extending up to 8 weeks before the expected delivery date, and the remaining 18 weeks can be availed post-childbirth.

Prior to the amendment of 1989, a woman employee could not avail of the six weeks’ leave preceding the date of her delivery; she was entitled to only six weeks' leave following the day of her delivery. However, by the above amendment, the position has changed. Now, in case a woman employee does not avail of six weeks’ leave preceding the date of her delivery, she can avail of that leave following her delivery, provided the total leave period, i.e., preceding and following the day of her delivery, does not exceed 12 weeks (now 26 weeks)."

You can bring the amended provision to the notice of management and tell them in clear terms that insisting on 3 months' leave before delivery is in violation of the MB Act and that what is specified is the maximum period before delivery (i.e., 8 weeks), and in actual terms, it could be anything less than that, including ZERO.

Dear Madam/Sir,

Thank you for your information. Could you please send the amended Act file with the highlighted point that I need? This will enable me to provide the necessary proof.

Thank you.

You have to highlight Section 5(3) of the Maternity Benefit Act, 1961, read with the Amendment Act 2017 (See Clause 3 of the Gazette Notification). Despite a widespread search for the amended Act, I have not been able to locate one. Therefore, both of them are attached.

Dear Sir/Madam,

Our HR is not accepting to take 6 months of continuous leave after delivery. What should I do now? Can you please suggest a course of action?

Thank you.

This amounts to a denial of maternity leave and is an offense punishable under the Act. You have the option of approaching the labor office or making a complaint to the National/State Women's Commission. Before doing so, provide them with a detailed letter outlining your submission and the advice from the ESI doctor, highlighting the legal position following the 2017 amendment.

Dear Priya,

You are an employee covered under the ESI Act. Consequently, you are eligible for maternity benefits under the ESI Act. Regarding availing the entire 26 weeks of leave post-delivery, it purely depends on your health condition and medical fitness. The ESI doctor will certify the period of leave after examination. Your employer has no role in controlling the ESI doctor. However, even if you wish to work until the date of delivery, it is not in conformity with the practice followed in such cases. Therefore, it is advisable to adhere to the ESI doctor's advice, which will be binding on you and your employer.

Kind regards