Regarding drafting a maternity leave policy - Can there be any exceptions?

Hi, my employer has asked me to create a maternity leave policy. We are a US-based company with a team of 8 members from India, all classified as contractors. Two of us, including myself, are pregnant. In India, the law provides for 26 weeks of leave.

During my research, I discovered that the minimum eligibility criteria for an organization in India is a minimum of 10 employees for the policy to be applicable. Are there any exceptions to this rule? I would appreciate your guidance on how to develop a policy for our organization. Any insights you can provide will be greatly appreciated.

Applicability of the Maternity Benefits Act

If your establishment is not a factory, mine, or plantation, then you require at least 10 persons to make the Maternity Benefits Act applicable to your organization. If your management is ready to extend it with 8 persons (whether on a fixed-term contract or not), you can make the provisions of the said Act applicable to you. However, ensure that the management does not question later why you implemented it when the law does not mandate providing 26 weeks' leave with salary.

Therefore, when submitting a proposal, be very careful. Offering 26 weeks' leave with pay is not a trivial matter, even for a US-based company. Hence, take approval stating that you will not fall under the Maternity Benefits Act, but the policy is drafted and implemented as an employee benefit. Since it is not mandated by law at this point, you can adopt the entire conditions as provided in the Act or create your own conditions, entitlements, and eligibility.

However, once the number of employees reaches 10, the law will become applicable, and the policy you have made will become inapplicable. My advice is to wait until the establishment becomes covered by the Act. This is because privileges can become rights for employees later on, a lesson from my experience in the field for more than three decades.

Please note that the headcount of 10 includes direct employees, employees engaged through contractors, housekeeping, etc. If you have such employees, then you are, by default, covered.

Dear Anonymous CiteHR Member,

I need the following clarifications to answer your query appropriately:

1. Whether the Indian employees termed as contractors are based in India or the US?
2. Whether the said 6 contractors are being paid a salary in USD or INR?
3. Whether the appointment letter stipulates any condition about maternity leave or maternity benefits.

Upon receipt of the above clarifications, I would be able to provide a suitable reply.

Regards, Chandramani Lal Srivastava
[Phone Number Removed For Privacy-Reasons]
[Email Removed For Privacy Reasons]

Hi, navigating maternity leave policies can be complex, especially when dealing with different legal jurisdictions like the US and India. While Indian law mandates a minimum of 10 employees for maternity leave policies to be applicable, there might be room for exceptions or alternative arrangements. Here are some steps you can take to develop a maternity leave policy for your organization:

Consult Legal Experts:
Seek advice from legal experts who are familiar with employment laws in both the US and India. They can help you understand any exceptions or alternative arrangements that might apply to your situation.

Consider Best Practices:
Even if your organization is not legally required to provide maternity leave in India due to the small team size, consider implementing a policy that aligns with best practices and reflects your company's values. Offering maternity leave can improve employee morale, retention, and overall company culture.

Flexible Arrangements:
Explore flexible arrangements such as remote work, reduced hours, or extended unpaid leave options to accommodate the needs of pregnant employees, even if a formal maternity leave policy cannot be implemented due to legal constraints.

Communicate Transparently:
Be transparent with your employees about the limitations of the current policy framework and any alternative arrangements that are being made. Clear communication can help manage expectations and foster trust within the team.

Provide Support:
Offer additional support to pregnant employees, such as access to resources for prenatal care, flexible scheduling for medical appointments, and accommodations for any pregnancy-related needs in the workplace.

Review Regularly:
Regularly review and update your maternity leave policy as your organization grows and evolves. As you hire more employees and expand your team, you may become eligible to implement a formal maternity leave policy under Indian law.

Seek Feedback:
Encourage feedback from employees, including pregnant employees, on the effectiveness of the maternity leave arrangements and any areas for improvement. Their input can help ensure that the policy meets the needs of your team.

By consulting legal experts, considering best practices, and being transparent with your team, you can develop a maternity leave policy that supports pregnant employees while navigating the legal requirements of both the US and India.

Thanks