Is My Employee Eligible for Maternity Benefits and How Should We Handle Her Pay?

One of my female employees who joined on Jan 7, 2020, is pregnant. Her expected delivery date is January 15, 2021. She is going on maternity leave from January 1, 2021. So, is she eligible for maternity benefit? If yes, can we pay her a monthly salary, or do we need to pay three months' salary together?

Clarification on Average Daily Wage

Please explain more on: "For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, the minimum rate of wage fixed or revised under the Minimum Wages Act, 194."

Thanks in advance.

Dear Jareena, Firstly, statutory maternity benefit (paid leave) is for 26 weeks. It can be availed by the employee at her option in two spells, the first spell not exceeding 8 weeks prior to the expected date of delivery and the second spell for 18 weeks from the date of delivery. It can also be availed at a stretch of 26 weeks right from the actual day of delivery. I think that you have confused yourself with the provision explaining how to calculate the leave salary on the basis of three months' average salary. The entire 26 weeks' leave is a paid one calculated on the average of the wages immediately preceding three months.

Thank you very much for your guidance. However, I am still confused about the clause mentioned below in the act:

"No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than 80 days in the twelve months immediately preceding the date of her expected delivery."

I hope this correction helps clarify the meaning. Let me know if you need further assistance.

Your query: "Thanks a lot for your guidance. But I am still confused with the below-mentioned clause in the act: 'No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than 1*[eighty days] in the twelve months immediately preceding the date of her expected delivery.'"

Answer: As the female employee joined your organization on January 7, 2020, and is proceeding on leave from January 1, 2021, she has completed one year of service with your company and is fully entitled to Maternity Benefit. In this scenario, what is your confusion?

I think, Jareena, you are a bit confused with the phrase "actually worked". I would request you to go through the explanation given under sec.5(2) of the Maternity Benefit Act, 1961.

Supreme Court Observation

For your clear understanding, let me quote the following observation of the Supreme Court in its judgment in WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION Vs MANAGEMENT [AIR 1986 SC 458]:

"The expression 'actually worked under the employer' cannot mean those days only when the workman worked with a hammer, sickle, or pen, but necessarily comprehends all those days during which he was in employment of the employer and for which he had been paid wages either under an express or implied contract of service or by compulsion of statute, standing orders, etc."

Please continue to regularly pay her on a monthly basis for the maternity benefit period of twenty-six weeks.