Maternity Leave Dilemma: Is She Eligible for Another Leave After a Recent Return?

Hi Team, One of our employees completed maternity leave and returned to work on April 24. After one month, she discovered she was pregnant again, and now, after five months, she has applied for maternity leave once more. The question is, is she eligible for this leave? Thank you.

Hi, Yes, she is very much eligible for a second maternity leave. There is no criterion that a minimum gap of months or years should exist between the first and second maternity leave periods, and no such clause is present in the Maternity Benefit Act.

Thank you for the clarification. Maternity leave typically applies 8 weeks before the delivery date, but she is currently 5 months pregnant. Is this allowed?

Maternity Leave Eligibility and Provisions

The Act provides for maternity leave of 12 weeks. This duration was increased in the amendment to the Act in 2017, and all women are eligible to take a 26-week maternity leave. They can take maternity leave from 8 weeks before the delivery date and take the remaining 18 weeks after delivery. When a woman already has two children, the maternity leave is only 12 weeks for the third and subsequent children. All pregnant women are eligible for 26 weeks of maternity leave for the 1st and 2nd child, out of which they can take a maximum of 8 weeks' leave before their expected delivery date.

Work from Home Provisions

The 2017 amendment provides that an employer can allow a woman to work from home during pregnancy if the nature of work is such that it can be done from home. After the maternity leave period, the woman can also use the option of working from home for a mutually agreed-upon period between the company and the employee. There is no stipulation about any gap between the maternity leaves.

Leave for Miscarriage or Medical Termination

A woman can take 6 weeks of maternity leave in the case of miscarriage or medical termination of pregnancy. However, she may have to produce proof of miscarriage, and the leave period starts immediately following the miscarriage date.

Leave for Adopting or Commissioning Mothers

Adopting or commissioning mothers can take up to 12 weeks of maternity leave starting from the day the newborn child is handed over to the mother.

Employer Responsibilities and Penalties

Employers must not give pregnant women difficult tasks or long working hours 10 weeks before the expected delivery date to ensure the safety and health of the mother and child. Additional leaves can be granted for new mothers requiring more recovery time. Employers can be punished with imprisonment if they contravene the provisions of the Act and do not provide maternity benefits for the mother. However, it is to be noted that employers should not employ a woman during the 6 weeks immediately following her delivery or miscarriage.

Vijay, I am unable to comprehend your query.

From the facts you have furnished, I presume that she rejoined in April 2024, and after one month, i.e., in May 2024, she comes to know that she is 5 months pregnant.

On this assumption, in my opinion, she is eligible for 26 weeks of maternity leave, out of which she can avail maternity leave 8 weeks prior to the expected childbirth. We have instances wherein pregnant women voluntarily report for work a few days prior to delivery and avail the entire 26 weeks thereafter.

In such a case, she will be eligible to avail the entire 26 weeks of Maternity Leave from the day she applies for.

Regards,

MVK

Yes, Mr. Kannan is right. It has been observed that many pregnant employees prefer to work until the appointed date, closing in for obvious reasons, and go to the labor room straight from the office in some instances, while traveling, etc. Is there any compulsion that they should avail prenatal leave for a few weeks? Should they not be allowed to utilize their full 26 weeks of postnatal leave for recuperation?

With regard to the case Vijay cited, we don't know when the delivery took place. Nevertheless, there can't be a second opinion that she will have to avail maternity leave for what she's entitled to.

Understanding the Maternity Benefits Act

If you analyze the Maternity Benefits Act, you will find that every woman employee should have worked for at least 80 days in the 12 months preceding the date or expected date of delivery. It is not just 80 days preceding the date of delivery but 80 days in a qualifying period of 12 months. If her expected date of delivery falls in April 2025, then the calculation would be correct, and if she has worked for 80 days till April 2025, she would get the benefit of the Act. However, that will never happen.

Calculating Actual Working Days

800 days is actual working, including only layoff days and holidays with wages, and no kind of paid leaves will be considered as working days for deciding the eligibility. Hence, the period of maternity leave preceding the date on which she has reported back from maternity leave in April 2024 shall be taken as days worked to decide qualifying service. Therefore, I am of the opinion that in order to be entitled to get maternity leave, an employee should have worked for 80 days in the 12 months preceding the date of delivery.

Following Mr. Madhu's post, I wish to understand one point more clearly. Does he mean to say that the employee in question must "complete the qualifying service of 80 days during the period of twelve months immediately preceding the date of her expected delivery" or not? Am I correct in my understanding? If so, in this case, she rejoined duty in April '24 and is likely to apply for maternity leave after '5 months' from then. If this is the case, the expected 'date of delivery' may be after 5 months, i.e., by September '24. It is presumed that she would have completed 80 days of qualifying service during the preceding 12 months, i.e., from Aug. '23 to Sept. '24. For this purpose, the approved leave shall also be counted as 'on paid leave' and treated as part of worked days as per Explanation to Sec. 5(1) & (2) of the Act.

I am attaching the extract from the Supreme Court judgment on the issue of maternity leave (explored in a different context) for a better understanding of the provisions of the Maternity Benefit Act in this situation:

Right to payment of maternity benefit

(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery, and any period immediately following that day. Explanation: For the purpose of this subsection, 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, 1948 (11 of 1948) or ten rupees, whichever is the highest.]

(2) 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: Provided that the qualifying period of (eighty days) aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. Explanation: For the purpose of calculating under this subsection the days on which a woman has actually worked in the establishment (the days for which she has been laid-off or was on holidays declared under any law for the time being enforced to be holidays with wages) during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account."

A copy of the Supreme Court judgment I am referring to is also attached. Members' views are welcome.

I am of the view that, in order to be entitled to maternity leave, a woman employee should meet two qualifications: 12 months of service and 80 days of working within that period. When considering the actual working days, only layoff days and paid holidays are counted as working days. While for the calculation of leave with wages, eligibility for gratuity, etc., paid leaves and maternity leave days are considered as days worked, this is not the case for maternity leave. It is important to note that the term used is "actually worked," with an explanation that includes layoff and holidays. If my view is correct, she will only be eligible for maternity leave if the delivery is not earlier than April 2025, i.e., she worked for 80 days within 12 months from April 2024.

In the case of ESI, the requirement of 12 months (2 consecutive contribution periods of six months each) and a certain number of days of contribution, i.e., 70 days, is mandatory. The logic remains the same.

Dr. Kavita's case is different, and the same principles apply to maternity benefits after the termination of a fixed-term contract.

Mr. Madhu, you mean if the woman has completed 80 days of work but has not completed 12 months of service, she will not be eligible for Maternity Benefits?

Regards,

Dr. Kamlesh Agrawal

Yes, my interpretation of Section 4 of the Act is that just 80 days of work will not entitle an employee to maternity leave. However, it is also required that the employee has worked for 12 months preceding the expected date of delivery to qualify for maternity leave.