Maternity Leave Dilemma: How to Address Repeated Long Absences and Legal Challenges?

Handling maternity leave requests

How to handle a female employee who was in HR and has already taken maternity leave once after having a baby: She has not come to the office for more than six months and is now pregnant again, demanding another six months of leave. We asked for her doctor's note, which mentioned bed rest, but the report indicated she was fit to travel and everything was fine. Consequently, we informed her via email that we would not be paying her until she attends a face-to-face discussion at the office. She has now sent a legal notice claiming unfair treatment.

According to the law, she can take leave two months before delivery and four months after. However, it seems unfair to the company that she is requesting more leave without returning to work in the office.

She cannot take maternity leave in continuation of the one she has availed. As per section 5(2), she should have actually worked at least 80 days in the 12 months preceding the expected date of delivery. There are two conditions: 80 days of working and 12 months. Therefore, you may reject her demand for maternity leave, stating that she is not eligible to take maternity leave (the second one) unless these two conditions are satisfied.

Maternity Benefits Eligibility

The condition of eighty days in twelve months is applicable only for maternity benefits related to confinement, not for sickness arising out of pregnancy.

Second Maternity Leave Without Returning to Work

The case here involves a second maternity leave request without the employee returning to work. The individual is asking for 26 weeks of maternity leave immediately after having utilized her first spell of leave. It is also presumed that she does not have two surviving children when she requests the 26 weeks of leave.

Thank you all for your response,

The case is after the first pregnancy, she resigned, but the company's business head requested her to rejoin after 4 months. Since then, she has not come to the office due to some reasons. Initially, the management was understanding, but it became evident over the next few months that she was not performing her duties well from home. Consequently, the management wanted her to return to work in the office, but she kept delaying.

Subsequently, when a new HR professional recently joined the company, the management started exerting more pressure. However, she informed them of another pregnancy. When the management suggested she work as a consultant, she responded via email requesting maternity leave for 6 months, with the plan to return one month after delivery. Following this, the management decided that until she appeared in the office for a face-to-face discussion, she would not be considered an employee, and no payments would be processed until then.

Hi, please carry out some investigation in her case. She might be working elsewhere and trying to misuse maternity benefits. As Mr. Madhu rightly said, maternity leave cannot be claimed in advance. It is allowed only two months before the expected delivery and the balance four months after delivery.

Eligibility criteria for maternity leave

Let us focus on the eligibility criteria for maternity leave concerning the second child. Whether it's the first, second, or third child, the condition that should be satisfied is that she should have worked 80 days in the preceding 12 months.

Right to payment of maternity benefit

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 immediately preceding and including the day of her delivery and for the six weeks immediately following that day. Explanation: 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, or one rupee a day, whichever is higher.

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 (earlier it was one hundred and sixty days) in the twelve months immediately preceding the date of her expected delivery. Provided that the qualifying period of 80 days (earlier it was one hundred and sixty 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 sub-section the days on which a woman has actually worked in the establishment, the days for which she has been laid-off during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

The maximum period for which any woman shall be entitled to maternity benefit shall be 26 weeks (earlier twelve weeks), that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day. NOTES: The term "week" means a cycle of seven days including Sundays; B. Shah V. Presiding Officer, A.I.R. 1978 S. C. 12.

Notice of claim for maternity benefit and payment thereof

Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit. In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.

Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery. On receipt of the notice, the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her delivery. The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on the production of "such proof" as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child. The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order. NOTES: See also Sec. 50 of the Employees' State Insurance Act, 1948, for conditions under which a woman becomes qualified to claim maternity benefit under this Act.

Is maternity leave applicable for a second child?

All pregnant women are eligible for 26 weeks of maternity leave for the first and second child, out of which they can take a maximum of 8 weeks' leave before their expected delivery date. For the third and subsequent child, mothers are eligible for 12 weeks of maternity leave. The original Maternity Benefit Act provided a leave of only 12 weeks or 3 months. Thankfully, the 2017 amendment has increased this duration to 26 weeks or 6 months. "All pregnant employees can take up to 8 weeks' leave before their expected delivery date and up to 18 weeks after giving birth to their child."

My opinion is that two conditions have to be satisfied: i) 80 days attendance during the preceding 12 months; ii) Her notice mentioning the expected date of delivery and the proof thereof. And it can be only 8 weeks of maternity leave before the expected delivery date. Depending on the responses, a clear position would emerge.

In Sec 5(3), the words "six weeks" were changed to "eight weeks" in the 2017 amendment. Twenty-six weeks of Maternity Benefit is available for women with up to two surviving children, not for two deliveries or two children.

She can take a one-month sickness leave during her pregnancy after completing her regular leave.

Management's Handling of Employee Resignation and Leave

As per the information provided in the posting, the management is completely biased and moving on the wrong track. The lady resigned, but the management did not consider her resignation. She was rather allowed to continue the job at her convenience, which is not only bad but also an out-of-focus action.

The said employee shrewdly sent the information about her second pregnancy. The management is left with no option but to consider her resignation instantly on the grounds that she didn't resume her duty within the given time as agreed. Whether she put 80 days prior to her delivery stands as valid on the grounds of separation.