Can My Company Force Me to Start Maternity Leave Early? Seeking Advice on Saving Leave for Post-Delivery Care

Hello everyone,

Please provide some clarity on this matter. Currently, I am experiencing maternity, and my delivery due date is in Sep-20. Today, my company's HR has informed me that I need to take my maternity leave prior to 8 weeks from the due date of delivery, i.e., from July-20. However, I do not wish to take it this early. Currently, I am completely fine without any complications, and I would like to save my leave for later days post my delivery for myself and my baby's care. They have already accounted for my leave under maternity from July-20. What should I do?

The HR's view that Maternity Leave can be availed of 8 weeks prior to the expected date of delivery and the remaining 18 weeks after delivery is correct as per sec.5(3) of the MBA, 1961. However, the employer cannot insist on this point. It is the choice of the employee either to avail it in two spells before and after delivery or avail the entire 26 weeks right from the date of delivery in a single spell. Ask the HR to revise the orders if any he issued already.

Section 5: Right to payment of maternity benefit

The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, of which not more than six weeks shall precede the date of her expected delivery. This wording makes it clear that she can choose to take less than six weeks before delivery. She can work until the date of delivery and then take the full leave afterwards.

Do the MB Act state that 26 weeks of leave can be availed from the date of confinement? Which section?

@verghesemathew

The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, of which not more than six weeks shall precede the date of her expected delivery. The law states that not more than 6 weeks before the delivery date. This means she can take a lesser number of days, even 1 or 2 days prior to delivery. The rest of the leave will obviously be after delivery.

Dear Mr. Varghese, perhaps by oversight, Mr. Rao has mentioned pre-amendment figures. Anyway, it doesn't alter the content of the answer to your query regarding whether the entire maternity leave can be availed of at a stretch from the date of delivery. You can make a critical analysis of sec. 5(3) of the MBA, 1961 in this regard.

Point of Reference for Maternity Leave

The point of reference for the benefit of leave of absence from work due to maternity is the expected date of delivery or the actual date of delivery. Availing this benefit before or after delivery is an exclusive choice to be exercised by the employee depending on her health condition. The limit on the pre-delivery leave of absence is only in recognition of prenatal issues likely to be faced by an expectant mother and not to curtail the extent of her post-natal leave. Above all, I hope that you'll agree with me that a provision of a social security labor legislation like the MBA, 1961 should be interpreted in a way that is more beneficial to the employee only.

Thank you, sirs. I had requested my HR that I wish to take the entire 26 weeks of maternity benefit post my delivery or start my maternity leave only a week before delivering the baby. However, they said it is the company's policy to send a woman on maternity leave 8 weeks (2 months) prior to the delivery and 18 weeks (4 months) post-delivery.

I am surprised by such a policy of a company that forcefully sends a woman on maternity leave against her wish. How can a company play with government laws without considering the welfare of women and their babies post-delivery, which requires utmost care? Also, there is no crèche facility in my office. How can a female employee leave her four-month-old baby at home without breastfeeding for at least 9-10 hours? How can they not think of the basic requirements of an infant post-delivery?

We employees always come under the awful pressure made by superiors sitting at the top because we cannot fight with them in fear of losing our jobs.

Dear Padma, though expressed with a note of frustration, what you have said is absolutely correct. No policy of an employer, whether it be an MNC or a small entrepreneur, can run counter to the provisions of any law applicable to their establishment.

When an employer abruptly refuses to understand this legal position and the HR Manager also fails to convince the employer but rather acts simply as "His Master's Voice," of course, the affected poor employee can seek redress only by making a complaint to the enforcement authority concerned under the particular law. However, eventually, it may cost the job of the employee on some other grounds, as the employer is always the superior party of the contract of employment.

Therefore, any such affected employee should try to be more rational than emotional in such a precarious situation. After all, you are asked to go on ML exactly 8 weeks before the EDD, that's all. Who knows, the delivery may happen earlier! In such a situation, you will have to be allowed the balance leave after delivery. Additionally, on proper medical evidence, you are also entitled to one more month's paid leave as per sec. 10 of the MBA, 1961.

My suggestion, therefore, to you, would be to take the 8-week leave before delivery as your employer insists and avoid unnecessary confrontation and consequential worries for now.

Dear sir,

Please let me know if a woman who is not an ESIC member can still receive maternity benefits. Additionally, could you clarify the number of days she is entitled to for salary or the amount she will receive after completing her maternity leave period?

Thank you.

Presently, due to the COVID-19 situation, pregnant women are not required to come into the office to work; instead, they are at home. If their expected delivery time is in October/November 2020, can they avail the entire maternity leave of 6 months after that? Alternatively, can the company consider splitting the maternity leave as 3 months before delivery and 3 months after?

If a woman has not availed any prenatal leave/benefits, she can have 6 months of leave after delivery.