Case Overview
A case has come to my notice. Details of the case are as follows: Shilpi has been working in a garment manufacturing and export company for the last seven years. She is expected to be a mother of a stillborn baby. She approached HR for maternity leave for 26 weeks as per the Maternity Benefit Amendment Act-2017, of which 8 weeks are to be taken before the expected date of delivery.
HR Department's Response
The HR department is telling her to apply first for PL. When all the PL is exhausted, the remaining days will be adjusted from her 26 weeks of maternity leave.
Important Note to HR Professionals
Here I would like to address all HR people that maternity leave is a special leave granted to women employees. No adjustment or debit to any other kind of leave is permissible. If it is done, they will bring the company on the wrong side of the law. If the matter is reported to the Human Rights Commission, they will address the concerned HR officer.
Regards, A.K. Hati
[Phone Number Removed For Privacy-Reasons]
From India, Kolkata
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7A case has come to my notice. Details of the case are as follows: Shilpi has been working in a garment manufacturing and export company for the last seven years. She is expected to be a mother of a stillborn baby. She approached HR for maternity leave for 26 weeks as per the Maternity Benefit Amendment Act-2017, of which 8 weeks are to be taken before the expected date of delivery.
HR Department's Response
The HR department is telling her to apply first for PL. When all the PL is exhausted, the remaining days will be adjusted from her 26 weeks of maternity leave.
Important Note to HR Professionals
Here I would like to address all HR people that maternity leave is a special leave granted to women employees. No adjustment or debit to any other kind of leave is permissible. If it is done, they will bring the company on the wrong side of the law. If the matter is reported to the Human Rights Commission, they will address the concerned HR officer.
Regards, A.K. Hati
[Phone Number Removed For Privacy-Reasons]
From India, Kolkata
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The company may have put in place such leave policies, which is wrong anyway. HR does not decide on leave policies. The top brass decides on leave policies as per the law governing the establishment. HR advice is vital in this matter. Denial of maternity leave is against existing law.
From India, Pune
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From India, Pune
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Did she want more leaves other than 26 weeks? If yes, than PL’s can be used.
From India, Hyderabad
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From India, Hyderabad
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Dear Mr. Hati,
The leave under MB has nothing to do with earned leave. The rules followed or suggested in the matter by the establishment are not above the statute. Advise the concerned individuals not to apply for the PL; instead, they should seek help from the licensing authority under whom the establishment is registered or has obtained a license.
From India, Mumbai
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The leave under MB has nothing to do with earned leave. The rules followed or suggested in the matter by the establishment are not above the statute. Advise the concerned individuals not to apply for the PL; instead, they should seek help from the licensing authority under whom the establishment is registered or has obtained a license.
From India, Mumbai
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Dear colleague,
What HR has done is not only unjust but patently illegal. To forcibly tell the lady employee to exhaust PL first and then avail of ML is idiosyncratic on the part of HR, who is bringing disrepute to the HR profession. In the MB Act, there are provisions for adjusting PL after ML is exhausted and not in the reverse order. Labour authorities' help can be sought if HR continues with this injustice.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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What HR has done is not only unjust but patently illegal. To forcibly tell the lady employee to exhaust PL first and then avail of ML is idiosyncratic on the part of HR, who is bringing disrepute to the HR profession. In the MB Act, there are provisions for adjusting PL after ML is exhausted and not in the reverse order. Labour authorities' help can be sought if HR continues with this injustice.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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Dear All:
Even here in Pakistan, Maternity Leave has no strings, "First this, then ML!" The organization's HR is being entirely unjust. The lady must proceed immediately as per the doctor's advice on ML, and her family, friends, and supporters must take the HR rep to court. Plain and simple.
Arif ur Rehman
From Pakistan, Karachi
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Even here in Pakistan, Maternity Leave has no strings, "First this, then ML!" The organization's HR is being entirely unjust. The lady must proceed immediately as per the doctor's advice on ML, and her family, friends, and supporters must take the HR rep to court. Plain and simple.
Arif ur Rehman
From Pakistan, Karachi
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The action on the part of HR is totally unjust, and the recently amended Maternity Benefit Act is not being implemented. The importance of motherhood is not yet realized by the people and hence is being ignored. The affected lady should approach the labor authority for her rights.
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If you have any further questions or need clarification, feel free to ask.
From United States , Stoughton
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If you have any further questions or need clarification, feel free to ask.
From United States , Stoughton
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Dear Members,
As already pointed out by various knowledgeable members, the organization is being unjust, unkind, and blatantly illegal to the woman in question. Some of my thoughts on this subject (please correct me if my interpretation is wrong):
Section 4 of the Maternity Benefit Act
Section 4 does not state that the employee has to be given "leave." Instead, it specifies that "No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery [miscarriage or medical termination of pregnancy]" and also that "No woman shall work in any establishment during the six weeks immediately following the day of her delivery [miscarriage or medical termination of pregnancy]."
Maternity Benefit Period
The Maternity Benefit (MB) period is referred to as "leave of absence" and not just "Leave." There is a distinction. A leave of absence (LOA) is a period of time that one must be away from one's primary job while maintaining the status of an employee. This differs from normal periods away from the workplace, such as vacations, holidays, hiatuses, sabbaticals, and "working from home" programs, as they are considered exceptional circumstances rather than benefits. Generally, such an arrangement has a predefined termination at a particular date or after a certain event has occurred (Source: Wikipedia).
Sections 9, 9A, and 10
"Leave" with wages at the rate of maternity benefit has been specified for certain specific cases such as miscarriage, tubectomy, and illnesses arising out of pregnancy.
Section 5(3)
The maximum period for which any woman shall be entitled to maternity benefit shall be 26 weeks, of which not more than eight weeks shall precede the date of her expected delivery.
Section 6(4)
Upon receipt of the notice, the employer shall allow such a woman to be absent from the establishment during the period for which she receives the maternity benefit.
Summing Up and a Few Questions
1) Maternity benefit (leave of absence) for up to a maximum of 26 weeks is a woman employee's right, crucial for the normal development of a newborn child, and employers CANNOT DENY IT if the employee requests it.
2) While the Maternity Benefit Act Amendment (2016) has extended the MB Period to 26 weeks, it is silent on Section 4, which explicitly prohibits the employment of a woman for 6 weeks after delivery (I am not aware of any earlier amendment to this section). While the act mentions a MAXIMUM 26 weeks MB Period, it does not explicitly specify a MINIMUM period, except through Section 4 (which prohibits employment for 6 weeks after delivery). Does this mean that a woman can request an MB period from 6 weeks to 26 weeks (if she so desires)?
Despite my queries above, I firmly believe that a newborn child definitely requires his/her mother's constant attention and care for as long as possible.
Thanks and Regards,
Arun
From India, Kochi
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As already pointed out by various knowledgeable members, the organization is being unjust, unkind, and blatantly illegal to the woman in question. Some of my thoughts on this subject (please correct me if my interpretation is wrong):
Section 4 of the Maternity Benefit Act
Section 4 does not state that the employee has to be given "leave." Instead, it specifies that "No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery [miscarriage or medical termination of pregnancy]" and also that "No woman shall work in any establishment during the six weeks immediately following the day of her delivery [miscarriage or medical termination of pregnancy]."
Maternity Benefit Period
The Maternity Benefit (MB) period is referred to as "leave of absence" and not just "Leave." There is a distinction. A leave of absence (LOA) is a period of time that one must be away from one's primary job while maintaining the status of an employee. This differs from normal periods away from the workplace, such as vacations, holidays, hiatuses, sabbaticals, and "working from home" programs, as they are considered exceptional circumstances rather than benefits. Generally, such an arrangement has a predefined termination at a particular date or after a certain event has occurred (Source: Wikipedia).
Sections 9, 9A, and 10
"Leave" with wages at the rate of maternity benefit has been specified for certain specific cases such as miscarriage, tubectomy, and illnesses arising out of pregnancy.
Section 5(3)
The maximum period for which any woman shall be entitled to maternity benefit shall be 26 weeks, of which not more than eight weeks shall precede the date of her expected delivery.
Section 6(4)
Upon receipt of the notice, the employer shall allow such a woman to be absent from the establishment during the period for which she receives the maternity benefit.
Summing Up and a Few Questions
1) Maternity benefit (leave of absence) for up to a maximum of 26 weeks is a woman employee's right, crucial for the normal development of a newborn child, and employers CANNOT DENY IT if the employee requests it.
2) While the Maternity Benefit Act Amendment (2016) has extended the MB Period to 26 weeks, it is silent on Section 4, which explicitly prohibits the employment of a woman for 6 weeks after delivery (I am not aware of any earlier amendment to this section). While the act mentions a MAXIMUM 26 weeks MB Period, it does not explicitly specify a MINIMUM period, except through Section 4 (which prohibits employment for 6 weeks after delivery). Does this mean that a woman can request an MB period from 6 weeks to 26 weeks (if she so desires)?
Despite my queries above, I firmly believe that a newborn child definitely requires his/her mother's constant attention and care for as long as possible.
Thanks and Regards,
Arun
From India, Kochi
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Dear Aniket, I did notice the use of the term "Still Born Baby," and because of the space between "Still" and "born," I presumed you meant "yet to be born" and not "stillborn" (God forbid). There is a whole world of difference.
Maternity Leave Entitlement
In the case of a "yet to be born baby," she is entitled to 26 weeks of Leave of Absence with Maternity Benefit from 8 weeks before the date of delivery. There is no argument on that.
Leave for Miscarriage or Medical Termination of Pregnancy
In the case of a "Miscarriage" (by definition in the Act, only up to and including the 26th week of pregnancy) or "Medical Termination of Pregnancy" (by definition in the Act, only those terminations that are permissible under the MEDICAL TERMINATION OF PREGNANCY ACT) or "stillbirth" (though not defined in the act, but generally considered after the 26th week of pregnancy and when the baby is born without signs of life).
FOR Miscarriage & MTP SEC 9 of the Act states: Leave for miscarriage, etc.—In case of miscarriage or medical termination of pregnancy, a woman shall, on the production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.
Leave for Stillbirth
FOR STILLBIRTH: Though nothing is specified in the Act about STILLBIRTH, but keeping in mind the "spirit of the law," I feel such cases will fall under the category of "Miscarriage" or "MTP" and be accorded leave as per sec 9.
In either case, I think there is NO case for asking the employee to take PL first and then adjust the remaining period as "leave of absence with Maternity Benefit."
Senior members may please comment on my interpretation.
Regards,
From India, Kochi
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Maternity Leave Entitlement
In the case of a "yet to be born baby," she is entitled to 26 weeks of Leave of Absence with Maternity Benefit from 8 weeks before the date of delivery. There is no argument on that.
Leave for Miscarriage or Medical Termination of Pregnancy
In the case of a "Miscarriage" (by definition in the Act, only up to and including the 26th week of pregnancy) or "Medical Termination of Pregnancy" (by definition in the Act, only those terminations that are permissible under the MEDICAL TERMINATION OF PREGNANCY ACT) or "stillbirth" (though not defined in the act, but generally considered after the 26th week of pregnancy and when the baby is born without signs of life).
FOR Miscarriage & MTP SEC 9 of the Act states: Leave for miscarriage, etc.—In case of miscarriage or medical termination of pregnancy, a woman shall, on the production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.
Leave for Stillbirth
FOR STILLBIRTH: Though nothing is specified in the Act about STILLBIRTH, but keeping in mind the "spirit of the law," I feel such cases will fall under the category of "Miscarriage" or "MTP" and be accorded leave as per sec 9.
In either case, I think there is NO case for asking the employee to take PL first and then adjust the remaining period as "leave of absence with Maternity Benefit."
Senior members may please comment on my interpretation.
Regards,
From India, Kochi
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I have reviewed your input and made the necessary corrections:
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"In either case, I think there is no case for asking the employee to take PL first and then adjust the remaining period as 'leave of absence with Maternity Benefit'.
Senior members may please comment on my interpretation."
I agree. Stillborn child and Maternity benefits. Child includes stillborn child as well. Maternity leave will not be impacted. Read the definition of Child in the Act (Sec 3).
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I have corrected the spelling and grammar errors, ensured proper paragraph formatting, and preserved the original meaning of your message.
From India, Pune
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"In either case, I think there is no case for asking the employee to take PL first and then adjust the remaining period as 'leave of absence with Maternity Benefit'.
Senior members may please comment on my interpretation."
I agree. Stillborn child and Maternity benefits. Child includes stillborn child as well. Maternity leave will not be impacted. Read the definition of Child in the Act (Sec 3).
---
I have corrected the spelling and grammar errors, ensured proper paragraph formatting, and preserved the original meaning of your message.
From India, Pune
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Totally agreed with both the seniors, Nathrao Sir and Arun Sir. But it seems like MTP; therefore, benefits should be as per section 9.
Also, there is no question of applying for PL. Only the querist can specify what exactly the case is.
From India, Pune
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Also, there is no question of applying for PL. Only the querist can specify what exactly the case is.
From India, Pune
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Dear Members,
While we are on the subject of Maternity Benefit, please see these articles on recent judgments on this matter:
- Contract Employees In Govt Establishments Entitled To Maternity Leave At Par With Govt Servants: Kerala HC | Live Law
- Maternity Leave Is Part Of Service Period, Must For A Woman To Be Real Mother: Madras HC [Read Order] | Live Law
Thank you.
From India, Kochi
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While we are on the subject of Maternity Benefit, please see these articles on recent judgments on this matter:
- Contract Employees In Govt Establishments Entitled To Maternity Leave At Par With Govt Servants: Kerala HC | Live Law
- Maternity Leave Is Part Of Service Period, Must For A Woman To Be Real Mother: Madras HC [Read Order] | Live Law
Thank you.
From India, Kochi
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Dear colleagues,
While all the views and court judgments are abundantly in favor of MB to a pregnant employee, on reading the post once again, it states that the concerned lady is expecting a stillborn baby. How this is known before delivery is not known. Did sonography or such other investigation reveal this? Need clarification to decide full MB or MB for miscarriage/MTP.
Regards, Vinayak Nagarkar HR Consultant
From India, Mumbai
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While all the views and court judgments are abundantly in favor of MB to a pregnant employee, on reading the post once again, it states that the concerned lady is expecting a stillborn baby. How this is known before delivery is not known. Did sonography or such other investigation reveal this? Need clarification to decide full MB or MB for miscarriage/MTP.
Regards, Vinayak Nagarkar HR Consultant
From India, Mumbai
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Creche under Maternity Benefit Act.pdf
Maternity Benefit Act.doc