Maternity Leave Eligibility - joined us in the month of December- 2022 - conveyed her pregnancy to us in the month of July

Hi all, I need your expert advice on the subject matter below.

There is one senior team member who joined us in December 2022. She informed us of her pregnancy in July and applied for maternity leave on September 16.

I would like to know if this employee is eligible for paid maternity leave.

Hi,

Yes, she is eligible for maternity benefits.

There are two questions often asked in such situations. One, whether the employee has worked for 80 days immediately preceding the expected date of delivery, and two, whether these 80 days are in the 12 months immediately preceding the expected date of delivery. The answer to the first question would be YES, but the answer to the second question need not be positive.

Suppose you have an employee who joined the company some five years back. She applies for maternity leave now but absents herself from work, and it is expected that she may not complete 80 days in the 12 months immediately preceding the expected date of delivery. She can be denied maternity leave because she has not worked for 80 days in the 12 months immediately preceding the expected date of delivery. If you narrate the same principle to someone who has joined, say, some six months back, she cannot demand the leave as a right.

In a situation where the employee is covered by ESI, the employee would get the benefits only if she has contributed for a certain number of days (70 days) in TWO consecutive contribution periods (of six months each). Here, it is one year specific.

My observation and interpretation of the law may be wrong, but I take it because there seems to be no relevance to "in 12 months immediately preceding..." in the Act if we just consider 80 days working (that too including holidays, etc).

Eligibility criterion for any woman employee who is pregnant is that she will be eligible to apply for maternity leave if she has worked for a minimum of 80 days in the preceding 12 months. Therefore, in this case, she is eligible for maternity leave with full salary.

What is the significance of "in 12 months"?

Can't it be interpreted as there should be 80 days in 12 months immediately preceding the date of delivery?

Had it been the objective to give maternity leave to employees who have worked for 80 days immediately preceding the date of delivery, section 5 (2) should have been like: "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 eighty days immediately preceding the date of her expected delivery."

But section 5(2) of the Act says:

"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 eighty days in the twelve months immediately preceding the date of her expected delivery."

That means (as I understand) there should be twelve months of service before the child's birth, and during this 12 months, the employee should have worked for at least 80 days. That means maternity leave can be refused to an employee who has joined some three or five years back but has not worked for 80 days in 12 months immediately preceding the date of delivery.

Section 5(2) of the Act states:

"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 eighty days in the twelve months immediately preceding the date of her expected delivery."

Madhu sir - I have read the interpretation. However, What I understood in the law is that a law can draw "a "lakshman rekha" within which we can treat the case. Here, Section 5(2) of the Act says "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 eighty days in the twelve months immediately preceding the date of her expected delivery", which means (to me) she should have worked for at least 80 days in the preceding 12 months from the date of her expected delivery. The Act does not specify what will happen if she worked for more days. Additionally, the Act does not mention what will happen if she worked for more than 80 days in less than 12 months preceding the date of her expected delivery.

Hence, the MB Act provides a broader viewpoint for granting MB Leave. (Kindly correct me if I am wrong)

You are right, it is not less than 80 days, and therefore, there cannot be any more days. But my interpretation of "in the 12 months preceding..." is to be read along with the same provision in the ESI Act, where it is two consecutive contribution periods or one year.

This matter was posted by me in various forums and before the Labour officers, but everybody says that it is only 80 days without relevance to 12 months. Even in the new labour Codes, we can see the same wording (The New Codes are just old wines in a new bottle, per se, and there are sentences just copied from the principal Acts and pasted therein).

Madhu sir - regarding the question of 'preceding 12 months', it is felt that our senior, Shri Umakanthan sir, can share his erudite reply.

Thank you.

Certainly, he will be able to give us a proper interpretation.

Hi Usha,

Whether an employee is eligible for paid maternity leave depends on the specific policies and laws of the company she is working for.

There are legal provisions for maternity leave, which may include paid leave. However, the details can vary widely. Some companies offer paid maternity leave as a statutory benefit, while others may not have specific provisions for paid leave, or it may be at the discretion of the employer.

In addition to legal requirements, many companies have their own policies regarding maternity leave. These policies may provide additional benefits beyond what is required by law.

To determine if this employee is eligible for paid maternity leave, you will need to:

Check the Legal Requirements: Look into the labor laws and regulations of your jurisdiction to find out what they say about maternity leave. This will be the minimum requirement.

Review Company Policies: Consult your company's HR department or review the employee handbook to understand the specific maternity leave policies that your company has in place.

Calculate Eligibility: Based on the legal requirements and company policies, calculate whether the employee meets the eligibility criteria for paid maternity leave.

Keep in mind that the fact that the team member joined in December 2022 may have some impact on her eligibility depending on the specific policies in place, but it's not necessarily a barrier to eligibility.

It's important to look into your company's HR policy or Employee Handbook for accurate and up-to-date information regarding maternity leave eligibility and benefits.

Regards,

She should have worked with the employer for 80 days in the last 12 months immediately preceding the date of her expected delivery.

Sugga@52987, the question is not just about 80 days but the requirement of 12 months' service for entitlement. What you have said is a plain reading of the Act, but what we are trying to convey is the significance of 'in 12 months preceding the (expected) date of delivery.'

Dear All,

Thanks for your valuable inputs and feedback.

Yes, we do have our policies, but for Maternity leave, it will be as per the Maternity Benefit Act. The reason this question has arisen is that we have female employees availing the maternity benefit. In this case, she did not disclose her pregnancy until her confirmation in June 23.

She came back to us in mid-July with her pregnancy news and claimed her Maternity leave on September 19.

The point here, as rightly highlighted by Madhu sir, is why is it mentioned in the act for the 12 months preceding, if the criteria are only for 80 days?

Warm Regards,
Usha Nikam