Navigating Uninformed Maternity Leave: How Should We Handle This Situation?

One of the employees is pregnant, and she did not inform us about a formal leave, whether written or electronic. She took leave from day one of her confirmation of pregnancy. At that time, she mentioned, "I took leave for the upcoming four months, and after that, I will come to the office." After four months, she did not inform me about her leave and has continued to be on leave up to this date.

I insisted that she go to the ESIC Dispensary Hospital. By now, the doctor at ESIC has stated that she has not made any contributions this year, so she has to contribute at least 78 days. Now, she is requesting to work from home, but she has been on un-informed leave for the past six months.

Now, what should be done?

Hi, the Maternity Benefit Act 1961 states that a woman should have worked with her employer for at least 80 days in the 12 months preceding the date of her expected delivery. If she fulfills this requirement, then she can utilize this mandated maternity leave and any further leave or benefits that her employer provides her. Please confirm whether the above employee qualifies for the maternity leave as stipulated by the MB Act.

As per the Maternity Benefit Act, women employees can take their maternity leave either before or after they deliver their child. Their maternity leave can also span a period before and after their delivery as well. During this leave period, the woman's employer is required to pay the woman employee her salary in its entirety.

If the employee is a contributing ESI member, then maternity benefit can be availed through ESI. Yes, the employee is supposed to submit a proper request for maternity leave. If the WFH option is feasible, you may consider the same.

She has only worked for 56 days so far this year, and she has not been informed of her leave in any formal manner. I only urged her to go to the ESIC hospital. Management has pointed out that she did not inform about taking any leave, and she has not even mentioned whether she is pregnant or not up to now. When I contacted her to inquire about her willingness to work, she disclosed that she is pregnant, and then I advised her to visit the ESIC hospital. We do not have any work-from-home policy.

It is clear from the facts that the employee is not entitled to maternity benefits as per the MB Act 1961. However, as she has informed you of her pregnancy, she is under the protection of the Act. It states that a woman employee is protected from discharge or dismissal during the pregnancy period. Her service conditions must be safeguarded until she returns to duty. Afterward, you may decide on her continuance or not.

Good morning. Members may kindly clarify the following doubts.

Coverage and Liability Under ESIC and Maternity Benefits

Women employees drawing less than the ceiling limit (currently Rs. 21,000 per month) are covered under ESIC. Due to the insured person's fault, she has become ineligible to receive maternity benefits under the ESIC Scheme. In this situation, does the employer become liable for the payment of maternity benefits? Similarly, another woman insured person is not interested in going to ESIC to avail maternity benefits. In this case, is the employer still liable to pay benefits under the maternity benefit scheme? Please enlighten on both questions!

Employee Leave and ESIC Benefits

If the employee is under ESI, then she should receive leave and other benefits from the ESIC only, and the employer has no obligation to provide maternity leave. Since the ESIC has refused, stating that she has not contributed for 78 days, you can also disown her, saying that she has not worked for 80 days in the 12 months preceding the child's birth. She should have worked for the entire period prior to 12 months, but what is required is 80 days immediately preceding the expected date of delivery. As she has worked only for 56 days, refuse to give her leave.

You can keep her on the rolls, as suggested by KK, and see if she returns after leave, which shall be unpaid.

This woman employee is not entitled to maternity leave, neither from the employer nor from ESI. The employer is within their rights to deny the grant of benefits under maternity leave because she had not completed the minimum requirement of 80 days of work. The same criteria also apply for ESI. She is not eligible under ESI if her monthly salary exceeds the ESI beneficiary eligibility of ₹21,000. It's a lost case, and this is due to the ignorance of the employee.

The management is free to terminate the employment for such unruly behavior by paying the notice amount. In this case, the employer did not conduct the pre-employment medical check-up.

K S Pasupathi,

In your case, it is unclear why the insured person under ESI is not entitled to maternity benefits from the ESIC. What is her fault? Didn't she approach the medical officer? That can be condoned, and even after getting treated at a private hospital, she can get leave from ESI if she presents herself with the baby to the medical officer. If the employer had deposited the ESI contributions, then the employer has no liability to extend her maternity benefits by paying salary for six months. Once she has been registered under ESI and contributions are paid, the employer is relieved of his responsibilities to pay maternity leave salary.

The other lady who is not interested in getting leave from ESIC cannot get it from the employer. The same explanation as above will apply to her.

You can advise these women that going to the ESI hospital is not as cheap as they think. If they feel that those who go there are poor people, then let them take leave without pay and after 26 weeks come back and join the organization. Or they can just meet the medical officer and take leave from the ESIC; there is no need to avail medical benefits if they don't require it. There is no way the employer can pay salary in respect of employees covered by ESI.