Hi Team, One of our employees completed maternity leave and joined for work on April 24. After one month, she came to know she was pregnant again, and now, after five months, she has applied for maternity leave again. Is she eligible for the leave?
From India
From India
Hi, Yes, she is very much eligible for a second maternity leave. There is no criteria that minimum this much month/year gap should be there between first and second Maternity leave period and no such clause is there in the Maternity Benefit Act.
From India, Madras
945From India, Madras
Thank you for the clarification but maternity leave will apply 8 weeks before the delivery date but she now in 5 months is this allowed ?
From India
From India
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 rest 18 weeks after delivery. When a woman already has two children, the maternity leave is only 12 weeks for the third and subsequent children. As all pregnant women are eligible for 26 weeks of ML for the 1st & 2nd child, out of which they can take a maximum of 8 weeks’ leave before their expected delivery date.
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.
And there is no stipulation about any gap between the ML.
A woman can take 6 weeks 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.
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.
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.
From India, Bangalore
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.
And there is no stipulation about any gap between the ML.
A woman can take 6 weeks 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.
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.
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.
From India, Bangalore
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 month 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 expected child birth. We have instances wherein the 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 entire 26 weeks Maternity Leave from the day she applies for.
Regards
MVK
From India, Madras
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 month 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 expected child birth. We have instances wherein the 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 entire 26 weeks Maternity Leave from the day she applies for.
Regards
MVK
From India, Madras
Yes, Mr.Kannan is right. It has been observed many pregnant employees prefer to work till the appointed date closing in for obvious reasons. And go to the labour room straight from, office some instances, while in travel etc. It's there any compulsion that they should avail pre-natal leave for a few weeks? Should they not be allowed to utilise their full 26 weeks postnatal for recuperation? But w.r.t.a case Vijay cited we donno when the delivery took place, notwithstanding, there can't be a second opinion that she will have to avail ML to what she's entitled to.
From India, Bangalore
From India, Bangalore
If you analyse the Maternity Benefits Act you will find that every woman employee should have worked at least for 80 days in the 12 months preceding the date/ 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 right, and if she has worked for 80 days till April 2025, she would get the benefit of the Act. But that will never happen. 800 days is actual working including only lay off 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 12 months preceding date of delivery.
From India, Kannur
From India, Kannur
Following the post of Mr.Madhu I wish to understand little more clearly one point. Does he mean to say the employee in question, whether she will "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. If so, in this case she joined back for duty some day in April'24 and she is likely to apply for ML after '5 months' from there. If yes, the expected 'date of delivery' may be after 5 months, i.e. by Sept.24. And it's presumed she would have completed 80 days of qualifying service during the preceding 12 months i.e. Aug.23 to Sept.24. And for this purpose the approved leave also shall be counted as 'on paid leave' and to be treated as part of worked days as per Explanation to Sec.5 (1) &(2) of the Act. I reproduce here the extract from the judgment of SC on the issue of ML(dealt in a different connotation) for appropriate understanding of the provisions of MBAct in this context.
"5. 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 the 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."
Copy of the judgment of SC I'm referring to is also attached.
Members views are welcome.
From India, Bangalore
"5. 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 the 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."
Copy of the judgment of SC I'm referring to is also attached.
Members views are welcome.
From India, Bangalore
I am of the view that in order to be entitled to maternity leave the woman employee should have two qualifications, ie,12 months service and 80 days working within that period. When we take the actual working days, only lay off days and paid holidays are considered as working days. Though for calculation of leave with wages, deciding the eligibility for gratuity etc paid leaves and maternity leaves days are considered as days worked, that is not available in the case of maternity leaves. Also please note that the word used is "actually worked" with explanation of adding lay off and holidays. If my view is correct, she will be able to get maternity leave only if the delivery is not earlier than April 2025, ie, if worked for 80 days in 12 months from the April 2024. In the case of ESI, the requirement of 12 months (2 consecutive contribution periods of six months each) and contribution of a certain days contribution, ie, 70 days, is mandatory. The logic is same.
Dr Kavita's case is different, and the same applies to maternity benefits after termination of fixed term contract.
From India, Kannur
Dr Kavita's case is different, and the same applies to maternity benefits after termination of fixed term contract.
From India, Kannur
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Maternity Leave Policy - posting.doc
Office Order regarding Maternity Leave for Contractual employee as per Amendment Act 2017.pdf