Maternity leave benefit - Hospitality sector, which is worst affected from this travel bans and worldwide COVID 19 lockdown

Hi, I would like to share an issue and am expecting a favorable reply.

One female employee has been working for 3 years in an establishment where the employee strength is only 8. In 2020, she became pregnant and verbally informed the HR department about her pregnancy. The HR department requested her to submit a leave application with proper handover in either January or February. This was to ensure that if there were any provisions for maternity benefits, they could inform her at that time. The company had never provided maternity benefits before. However, she did not submit her leave application or hand over any duties. Meanwhile, the lockdown began on March 23rd. When asked by the HR department about her expected delivery date during the lockdown, which she had not shared before, she mentioned it would be on May 10th.

Our industry is directly associated with the Hospitality sector, which has been severely impacted by travel bans and worldwide lockdowns. We paid her full salary for March. In April, we advised her to apply for leave at least. She emailed her leave dates as 3rd April 2020 to 1st August 2020.

During the lockdown, I informed her through a conversation that maternity benefits would not be provided due to insufficient funds, and a decision would be made upon her return. Additionally, our establishment does not fall under the purview of the Maternity Benefit Act.

We did not pay her April salary, and she has been emailing about it. I explained to her that her applied leave was considered as unpaid leave. I mentioned that she did not follow the rules regarding maternity benefits, as she did not submit any pregnancy reports or her delivery date to the organization as required for determining maternity benefits. She also did not work from home during the leave period. However, she seems to be confused and is inquiring about her April salary. Kindly share your views.

Dear Alka,

The answer is very simple. Your establishment is certainly not a factory, mine, or plantation as per section 2(1)(a) of the Maternity Benefit Act, 1961, and as such, the Act is not applicable. Alternatively, it should be an establishment falling under section 2(1)(b) of the Act, employing either now or in the preceding 12 months 10 or more employees. However, you have mentioned that the total number of employees in the establishment is only 8.

If your statement is correct regarding the number of all persons employed as of now and in the past, certainly you are not bound to entertain any claim under the Act. Hence, the leave applied for has to be treated as Leave on Loss of Pay only.

What happens if a female employee has taken the full amount/benefit of maternity leave but does not return to the organization after completing her maternity leave?

Thank you for your response, sir. I would like to inquire about the situation where a female employee has utilized the full extent of maternity benefits but decides not to return to work following the completion of her maternity leave.

Dear Alka,

Maternity benefits contemplated under the Maternity Benefit Act of 1961 include mostly leave of absence with wages for a certain number of days based on the reasons/stages associated with the pregnancy/delivery of a child of an employed woman. The eligibility for all such benefits arises from her minimum length of service in the establishment. Therefore, the employer can take suitable disciplinary action against her failure to rejoin duty without any intimation, treating it like any other case of unauthorized absence and may award appropriate punishment, including termination of service, as deemed fit.

Regarding your question, one can easily understand its importance. Unfortunately, you cannot rescind the leave already granted or recover any money already paid for her subsequent unauthorized absence, if any.

Please let me know if you need further clarification or assistance.

Thank you.

Thank you, sir, for the reply.

With regards,

Alka Kashyap

Hello, sir,

How are you, sir? Refer to the above threads regarding the unpaid leave issue. Now, the employee has emailed requesting an extension of leave for an additional 2 months, continuing from the previous leave period. She is claiming maternity leave period salary from April to July 2020 and has mentioned the possibility of taking legal action against the company.

Our management does not want to continue her employment as there is not a lot of work for her profile. Can we send the termination letter in response to the leave extension email? Please advise.

Thank you.