Can you please advise on below scenario?
1. An employee joins us on March 31 and she did not tell us that she is pregnant.
2. She was pregnant from Feb 1 (60 days) before joining us.
3. When she joined us, she did not tell us that she is pregnant.
4. We did not ask her question if she is pregnant (i.e. neither we asked nor she told herself)
Q1- Is it legal in India to ask questions to female employees “Are you pregnant” ?
Q2- Are the female candidates expected to tell/disclose themselves to new to-be employer that she is pregnant (without new employer asking this question) ?
Q3- In the above scenario (1,2,3,4), are you bound to pay to such employee for 3/6 of payment (as neither we asked nor she told us herself)?
Q4- What if we ask the candidate that if she is pregnant , and she says, she is not. But in fact she is (i.e. she lies to get job). What type of proof (with witnesses) we need to keep as a record in her personal file of this conversation that she told us that she is not pregnant ?
Q5: What medical proof can be asked to find out the exact date of pregnancy ? (i.e. doctor certificate)
Q6- If a female becomes pregnant on Feb 1 with employer X (previous employer) and join us on March 31. Is she eligible for paid leaves from us (i.e. she conceived while she was not working for us)
Q7-Who determines if the paid leaves will be 3 months or 6 months ?
From India, Thana
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31. An employee joins us on March 31 and she did not tell us that she is pregnant.
2. She was pregnant from Feb 1 (60 days) before joining us.
3. When she joined us, she did not tell us that she is pregnant.
4. We did not ask her question if she is pregnant (i.e. neither we asked nor she told herself)
Q1- Is it legal in India to ask questions to female employees “Are you pregnant” ?
Q2- Are the female candidates expected to tell/disclose themselves to new to-be employer that she is pregnant (without new employer asking this question) ?
Q3- In the above scenario (1,2,3,4), are you bound to pay to such employee for 3/6 of payment (as neither we asked nor she told us herself)?
Q4- What if we ask the candidate that if she is pregnant , and she says, she is not. But in fact she is (i.e. she lies to get job). What type of proof (with witnesses) we need to keep as a record in her personal file of this conversation that she told us that she is not pregnant ?
Q5: What medical proof can be asked to find out the exact date of pregnancy ? (i.e. doctor certificate)
Q6- If a female becomes pregnant on Feb 1 with employer X (previous employer) and join us on March 31. Is she eligible for paid leaves from us (i.e. she conceived while she was not working for us)
Q7-Who determines if the paid leaves will be 3 months or 6 months ?
From India, Thana
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Dear Appleboycat,
The replies to your questions are as below:
Q1- Is it legal in India to ask questions to female employees “Are you pregnant”?
Reply: - Employment of woman depends on her pregnancy provided nature of her job is hard like lifting weight or working at high-rise buildings as in case of construction workers or case of cabin crew of airlines wherein she needs to work at high altitude and she may not be fit to take such work. In such cases, employer needs to mention medical requirements in Job Description (JD) of the position clearly. Otherwise, there is no need to ask such question. However, alike USA or other western countries, India does not have explicit law that prohibits asking personal question to a job candidate in the selection process.
Q2- Are the female candidates expected to tell/disclose themselves to new to-be employer that she is pregnant (without new employer asking this question) ?
Reply: - No need of disclosure. She can read the JD of her position and find out whether the work can impact her pregnancy
Q3- In the above scenario (1,2,3,4), are you bound to pay to such employee for 3/6 of payment (as neither we asked nor she told us herself)?
Reply: - Every pregnant woman who completes 80 days of her continuous employment, is eligible for 26 weeks of maternity leave. It is incumbent on employer to sanction her maternity leave under the provisions of Maternity Benefit Act, 1961 or ESI Act applicable to the respective state of India
Q4- What if we ask the candidate that if she is pregnant , and she says, she is not. But in fact she is (i.e. she lies to get job). What type of proof (with witnesses) we need to keep as a record in her personal file of this conversation that she told us that se is not pregnant ?
Reply: - Pregnancy, if it does not impact the work, then neither employer need to ask this question, nor job candidate needs to disclose. Pregnancy is the private matter of the woman employee. Please note that barely month before Supreme Court has given a verdict wherein it has told that Right to Privacy is a fundamental right, it is intrinsic to right to life. Click the following link to refer the news about this verdict:
Supreme Court: Right to Privacy is a fundamental right, it is intrinsic to right to life
Please note that right to privacy was enshrined in the constitution of India and Supreme Court has just affirmed it.
Q5: What medical proof can be asked to find out the exact date of pregnancy ? (i.e. doctor certificate)
Reply: - On completion of the first trimester, woman employee is expected to provide certificate from certified medical practitioner (gynaecologist) confirming her pregnancy. If the woman is covered under ESI, Act then certificate is to be obtained from ESI doctor.
Q6- If a female becomes pregnant on Feb 1 with employer X (previous employer) and join us on March 31. Is she eligible for paid leaves from us (i.e. she conceived while she was not working for us)
Reply: - Yes, she is eligible as she has completed 80 days of employment by now. MBA, 1961 or ESI, Act does not mandate that to avail of maternity leave, woman employee must work under the respective employer who will sanction her leave.
Q7-Who determines if the paid leaves will be 3 months or 6 months ?
Reply: - Maternity Benefit Act, 1961, as amended in March 2017 determines whether woman is eligible to get 12 or 26 weeks of maternity leave. For the pregnancy of her first two children, she is eligible to get 26 weeks maternity and from third onward, 12 weeks.
Thanks,
Dinesh Divekar
From India, Bangalore
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The replies to your questions are as below:
Q1- Is it legal in India to ask questions to female employees “Are you pregnant”?
Reply: - Employment of woman depends on her pregnancy provided nature of her job is hard like lifting weight or working at high-rise buildings as in case of construction workers or case of cabin crew of airlines wherein she needs to work at high altitude and she may not be fit to take such work. In such cases, employer needs to mention medical requirements in Job Description (JD) of the position clearly. Otherwise, there is no need to ask such question. However, alike USA or other western countries, India does not have explicit law that prohibits asking personal question to a job candidate in the selection process.
Q2- Are the female candidates expected to tell/disclose themselves to new to-be employer that she is pregnant (without new employer asking this question) ?
Reply: - No need of disclosure. She can read the JD of her position and find out whether the work can impact her pregnancy
Q3- In the above scenario (1,2,3,4), are you bound to pay to such employee for 3/6 of payment (as neither we asked nor she told us herself)?
Reply: - Every pregnant woman who completes 80 days of her continuous employment, is eligible for 26 weeks of maternity leave. It is incumbent on employer to sanction her maternity leave under the provisions of Maternity Benefit Act, 1961 or ESI Act applicable to the respective state of India
Q4- What if we ask the candidate that if she is pregnant , and she says, she is not. But in fact she is (i.e. she lies to get job). What type of proof (with witnesses) we need to keep as a record in her personal file of this conversation that she told us that se is not pregnant ?
Reply: - Pregnancy, if it does not impact the work, then neither employer need to ask this question, nor job candidate needs to disclose. Pregnancy is the private matter of the woman employee. Please note that barely month before Supreme Court has given a verdict wherein it has told that Right to Privacy is a fundamental right, it is intrinsic to right to life. Click the following link to refer the news about this verdict:
Supreme Court: Right to Privacy is a fundamental right, it is intrinsic to right to life
Please note that right to privacy was enshrined in the constitution of India and Supreme Court has just affirmed it.
Q5: What medical proof can be asked to find out the exact date of pregnancy ? (i.e. doctor certificate)
Reply: - On completion of the first trimester, woman employee is expected to provide certificate from certified medical practitioner (gynaecologist) confirming her pregnancy. If the woman is covered under ESI, Act then certificate is to be obtained from ESI doctor.
Q6- If a female becomes pregnant on Feb 1 with employer X (previous employer) and join us on March 31. Is she eligible for paid leaves from us (i.e. she conceived while she was not working for us)
Reply: - Yes, she is eligible as she has completed 80 days of employment by now. MBA, 1961 or ESI, Act does not mandate that to avail of maternity leave, woman employee must work under the respective employer who will sanction her leave.
Q7-Who determines if the paid leaves will be 3 months or 6 months ?
Reply: - Maternity Benefit Act, 1961, as amended in March 2017 determines whether woman is eligible to get 12 or 26 weeks of maternity leave. For the pregnancy of her first two children, she is eligible to get 26 weeks maternity and from third onward, 12 weeks.
Thanks,
Dinesh Divekar
From India, Bangalore
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Dear Appleboycat,
At the outset, I wish to point out that all your queries stem from your generalization that pregnancy of a woman at the time of her recruitment is a bar on employment and the voluntary disclosure of the fact of pregnancy or not with medical evidence is a must. I think it cannot be so unless otherwise stipulated as one of the conditions by the employer based on the specific nature of the job to which she is to be selected.
If your queries are based on the presumption that by denying employment to a pregnant woman, the employer can be legally relieved of the burden of paying her maternity benefits under the Maternity Benefit Act, 1961, my answer to the queries is 'NO' only. The MB Act prescribes the conferring of maternity benefits to a female employee only in the event of childbirth, miscarriage, or medical termination of pregnancy subject to her actually working for not less than 80 days in the same establishment preceding the date of such occasions.
From India, Salem
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At the outset, I wish to point out that all your queries stem from your generalization that pregnancy of a woman at the time of her recruitment is a bar on employment and the voluntary disclosure of the fact of pregnancy or not with medical evidence is a must. I think it cannot be so unless otherwise stipulated as one of the conditions by the employer based on the specific nature of the job to which she is to be selected.
If your queries are based on the presumption that by denying employment to a pregnant woman, the employer can be legally relieved of the burden of paying her maternity benefits under the Maternity Benefit Act, 1961, my answer to the queries is 'NO' only. The MB Act prescribes the conferring of maternity benefits to a female employee only in the event of childbirth, miscarriage, or medical termination of pregnancy subject to her actually working for not less than 80 days in the same establishment preceding the date of such occasions.
From India, Salem
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Dear Friend,
A woman knows she is pregnant after 45 days (assuming), when her menstruation cycle is skipped. Many women, due to various reasons, might not be aware of these conditions. Additionally, confirming the pregnancy and setbacks can occur in the next 15 to 25 days.
There is no question of discussing pregnancy and managing it during this period. Attending an interview and being selected for a position have no connection to the workplace regarding pregnancy. The selection procedure is based on skills, knowledge, academic excellence, work interest, etc. Neither are you necessarily interested in the pregnancy status of the woman, nor does the woman need to disclose her pregnancy for a transparent interview and selection process.
Therefore, when she completes the training period after six months, she is entitled to maternity leave. Allow her the eligible leave and do not lose the candidate due to these questions.
Let me clarify some issues:
1) If an individual (particularly a woman) attends the UPSC exam and is selected for IAS/IPS/IPS training but is found pregnant, what will the authorities do during the advanced stage of pregnancy?
2) If a woman police officer is found pregnant at four months but was selected when she was fit for the post, what will the authorities do?
3) When a woman was selected for a position in an IT company before marriage, and later got married and became pregnant three months into the job, receiving a posting to a faraway place, what will the company do? She is intelligent and academically well-qualified.
"Pregnancy is a natural process; it should not affect selection decisions. Organizations need to rearrange and not view pregnancy as an obstacle." Praise motherhood and do not question it, considering time and other factors.
From India, Arcot
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A woman knows she is pregnant after 45 days (assuming), when her menstruation cycle is skipped. Many women, due to various reasons, might not be aware of these conditions. Additionally, confirming the pregnancy and setbacks can occur in the next 15 to 25 days.
There is no question of discussing pregnancy and managing it during this period. Attending an interview and being selected for a position have no connection to the workplace regarding pregnancy. The selection procedure is based on skills, knowledge, academic excellence, work interest, etc. Neither are you necessarily interested in the pregnancy status of the woman, nor does the woman need to disclose her pregnancy for a transparent interview and selection process.
Therefore, when she completes the training period after six months, she is entitled to maternity leave. Allow her the eligible leave and do not lose the candidate due to these questions.
Let me clarify some issues:
1) If an individual (particularly a woman) attends the UPSC exam and is selected for IAS/IPS/IPS training but is found pregnant, what will the authorities do during the advanced stage of pregnancy?
2) If a woman police officer is found pregnant at four months but was selected when she was fit for the post, what will the authorities do?
3) When a woman was selected for a position in an IT company before marriage, and later got married and became pregnant three months into the job, receiving a posting to a faraway place, what will the company do? She is intelligent and academically well-qualified.
"Pregnancy is a natural process; it should not affect selection decisions. Organizations need to rearrange and not view pregnancy as an obstacle." Praise motherhood and do not question it, considering time and other factors.
From India, Arcot
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Dear Friend,
Many companies have a medical history form to be filled out by male and female employees along with the joining report. This form contains details about the disclosure of pregnancy at the time of joining. The employees are required to disclose their medical details in the form.
Not allowing selected female employees to join may get the company into trouble. This has to be done very discreetly and smoothly. You can also create the medical history form (if you do not already have one) and make it a mandatory part of your employee joining kit. Mr. Divekar and Mr. Umakanthan have already provided sufficient details.
Warm Regards,
Bharat Gera
HR Consultant
9322404765
From India, Thane
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Many companies have a medical history form to be filled out by male and female employees along with the joining report. This form contains details about the disclosure of pregnancy at the time of joining. The employees are required to disclose their medical details in the form.
Not allowing selected female employees to join may get the company into trouble. This has to be done very discreetly and smoothly. You can also create the medical history form (if you do not already have one) and make it a mandatory part of your employee joining kit. Mr. Divekar and Mr. Umakanthan have already provided sufficient details.
Warm Regards,
Bharat Gera
HR Consultant
9322404765
From India, Thane
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This is one reason why we get the pre-joining medical examination. It is not just for females but for every employee who joins an organization. One must check whether or not the employee is medically fit to join work. This should be the solution for you to keep a record as well as to judge whether or not to continue with the candidate and also as a reference point in case the employee gets unwell at any given time - medical assistance will be easy then.
From United Kingdom
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From United Kingdom
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I would like to add to the checklist of joining formalities, especially for female employees regardless of marital status, that we should explain the benefits to female employees under the Maternity Benefits Act and any other related benefits as per company policy.
I think the employee herself will realize that if she wants to avail of such benefits, she should disclose the fact.
Regards, Amit
From India, Vadodara
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I think the employee herself will realize that if she wants to avail of such benefits, she should disclose the fact.
Regards, Amit
From India, Vadodara
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Q1. It is not legal to ask such questions to women employees.
Q2. Disclosing her pregnancy to the new employer is her decision.
Q3. Every pregnant woman who completes 80 days of continuous employment is eligible for 26 weeks of maternity leave. If she has not completed her 80 days of tenure, you can terminate her for other reasons. If she is an employee covered by ESI, there will be no issue, and the management can suggest she utilize ESI facilities for benefits.
Q4. In the application form provided by the company, you can include a column for the marriage date. By having this column, you can potentially ask related questions. If she indicates she is not pregnant, you can mark 'Y' for Yes and 'N' for No next to the date. As this pertains to the privacy of the female employee, you should maintain records in this manner.
Q5. You are not allowed to request any medical certificates regarding this matter.
Q6. Refer to the answer for Q3.
Q7. The Maternity Benefit Act of 1961, as amended in March 2017, determines whether a woman is eligible for 12 or 26 weeks of maternity leave.
From India, Madurai
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Q2. Disclosing her pregnancy to the new employer is her decision.
Q3. Every pregnant woman who completes 80 days of continuous employment is eligible for 26 weeks of maternity leave. If she has not completed her 80 days of tenure, you can terminate her for other reasons. If she is an employee covered by ESI, there will be no issue, and the management can suggest she utilize ESI facilities for benefits.
Q4. In the application form provided by the company, you can include a column for the marriage date. By having this column, you can potentially ask related questions. If she indicates she is not pregnant, you can mark 'Y' for Yes and 'N' for No next to the date. As this pertains to the privacy of the female employee, you should maintain records in this manner.
Q5. You are not allowed to request any medical certificates regarding this matter.
Q6. Refer to the answer for Q3.
Q7. The Maternity Benefit Act of 1961, as amended in March 2017, determines whether a woman is eligible for 12 or 26 weeks of maternity leave.
From India, Madurai
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Legal Clarification on Negative Covenants in Employment Agreements.pdf