Is an Employee Entitled to Annual Leave Credits While on Maternity Leave?

Dear All,

Can you please advise if an employee is legally eligible for a credit of privilege/annual leave during the maternity leave period.

Regards,
Varsha Karalkar

Accrual of privilege/annual leave with wages/earned leave during the period of maternity leave availed depends upon the conditions specified for the purpose of calculation of the same in the establishment-specific law applicable to the establishment only. For example, explanation 1(b) to Sec. 79(1) of the Factories Act, 1948, which deals with the calculation of annual leave with wages, categorically excludes the accrual of this leave during the period undergone by the employee on maternity leave.

Dear Varsha Madam,

As per the amended Maternity Benefit Act, Maternity leave has been extended to six months, which is paid.
Please clarify where the need arises for availing Paid Leave during the period of Maternity Leave in this situation. The amended Act also provides for availing Paid Leave after Maternity Leave is exhausted.

Regards,
Vinayak Nagarkar
HR Consultant

Annual Leave with Wages Under the Factories Act

Section 79 of the Factories Act defines annual leave with wages as follows:

(1) Every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed, during the subsequent calendar year, leave with wages for a number of days calculated at the rate of:

(i) If an adult, one day for every twenty days of work performed by him during the previous calendar year.

Explanation 1: For the purpose of this subsection:

(b) In the case of a female worker, maternity leave for any number of days not exceeding twelve weeks shall be deemed to be days on which the worker has worked in a factory for the purpose of computation of the period of 240 days or more, but shall not earn leave for these days.

Leave Provisions Under the Maharashtra Shops and Establishments Act

Section 18(3) of the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 states:

Every worker who has worked for a period of two hundred and forty days or more in an establishment during a calendar year shall be allowed, during the subsequent calendar year, leave with wages for a number of days calculated at the rate of one day for every twenty days of work performed by him during the previous calendar year.

For the purpose of subsection (3):

(b) In the case of a woman worker, maternity leave as provided for in the Maternity Benefits Act, 1961 shall be deemed to be days on which the worker has worked in any establishment for the purpose of computation of the period of two hundred and forty days or more, but shall not earn leave for these days.

Maternity Leave and Eligibility for Leave Calculation

Maternity leave availed, whether under the Maternity Benefit Act or under the ESI Act, shall be included for the purpose of calculating eligibility criteria under all applicable legislations (be it the Factories Act, Mines Act, Shops and Establishments Act, Plantations Act, etc.). However, for calculating the number of days earned, such maternity leave shall be excluded.