How to tackle a female employee who was HR, and has already taken maternity leave one time after having a baby she has not come to the office for more than six months and she is again pregnant and now demanding leave for six months, so we asked her doctor slip where it is mentioned bed rest, but in the report its written travelling and everything is fine, so we send her a mail that we will not be paying her any amount until she comes to the office face to face discussion, now she sent a legal notice for unfairness.
As per law, she can take leave 2 months before delivery and 4 months after, but it's unfair to the company that without working from the office she is again demanding leave !!
From India, Bengaluru
As per law, she can take leave 2 months before delivery and 4 months after, but it's unfair to the company that without working from the office she is again demanding leave !!
From India, Bengaluru
She cannot take maternity leave in continuation to 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 working and 12 months. Therefore, you may reject her demand for maternity leave saying that she is not eligible to take maternity leave (second one) unless these two conditions are satisfied.
From India, Kannur
Most Appreciated Member
4249From India, Kannur
Most Appreciated Member
Eighty days in twelve months condition is applicable only for maternity benefits for confinement, not for sickness arising out of pregnancy.
From India, Thiruvananthapuram
Most Appreciated Member
From India, Thiruvananthapuram
Most Appreciated Member
The case here is second maternity leave without joining back! The person on leave is asking for maternity leave of 26 weeks immediately after she has utilised the first spell of leaves. It is also presumed that she does not have two surviving children when she asks for 26 weeks leave.
From India, Kannur
Most Appreciated Member
From India, Kannur
Most Appreciated Member
The case need to be dealt carefully, do not reply bluntly rather keep silence before you act.
There are certain things need to be read properly,. Do the company have Standing orders or company rules on absenteeism or conditions of termination etc, are the vital points comes picture at this juncture.
To be eligible for maternity benefits, a woman must:
Have worked for the employer for at least 80 days in the 12 months before her expected delivery date. The suggestion can't be homogenous for all cases. It would be better if u can free to discuss 8093097934 for some insights.
,
From India, Mumbai
Contributing Member
There are certain things need to be read properly,. Do the company have Standing orders or company rules on absenteeism or conditions of termination etc, are the vital points comes picture at this juncture.
To be eligible for maternity benefits, a woman must:
Have worked for the employer for at least 80 days in the 12 months before her expected delivery date. The suggestion can't be homogenous for all cases. It would be better if u can free to discuss 8093097934 for some insights.
,
From India, Mumbai
Contributing Member
Thank you all for your revert,
The case is after the first pregnancy she resigned, but the company's business head requested her to join after 4 months, from that time she has not come to the office due to some reasons and management was also okay then, but it became clear in few months that she is not performing her duties well from home, so the management wanted to call her back to work from the office, but she kept delaying, so when a new HR joined recently the company, the management started forcing more but she held up with another pregnancy and when the management said to her to work as a consultant, she mails that saying she needs maternity leave, for 6 month and she will join after 1 month of her delivery, so the management decided until she comes to office and talk face 2 face, she will be considered not an employee of office and no payment will process until then.
From India, Bengaluru
The case is after the first pregnancy she resigned, but the company's business head requested her to join after 4 months, from that time she has not come to the office due to some reasons and management was also okay then, but it became clear in few months that she is not performing her duties well from home, so the management wanted to call her back to work from the office, but she kept delaying, so when a new HR joined recently the company, the management started forcing more but she held up with another pregnancy and when the management said to her to work as a consultant, she mails that saying she needs maternity leave, for 6 month and she will join after 1 month of her delivery, so the management decided until she comes to office and talk face 2 face, she will be considered not an employee of office and no payment will process until then.
From India, Bengaluru
When a query is posted,please give the full facts. Not in bits and pieces after members give the reply .
The eligibility condition of 160 days in twelve months is very old. 160 days is now amended as 80 days.
From India, Thiruvananthapuram
Most Appreciated Member
The eligibility condition of 160 days in twelve months is very old. 160 days is now amended as 80 days.
From India, Thiruvananthapuram
Most Appreciated Member
Hi, please carry out some investigation in her case. She might be working elsewhere and trying to misutilise maternity benefit. As Mr Madhu rightly said maternity leave cannot be claimed in advance. It is allowed only two months before expected delivary and balance 4 months after delivary.
From India, Bengaluru
From India, Bengaluru
Let us focus on the eligibility criteria for the ML, in respect of 2nd child. Whether it's first, second or 3rd the condition should be satisfied is 'she should have worked 80 days in the preceding 12 months.
xxx
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
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.
" (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 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.
(3) The maximum period for which any woman shall be entitled to maternity benefit shall
be 26 (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.
xxxxx
6. Notice of claim for maternity benefit and payment thereof. -- (1) 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.
(2) 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.
9 Ins. By Act 21 of 1972, S. 3.
10 Ins. By Act 53 of 1976, S. 3.
(3) Any woman who has not given the notice when she was pregnant may give such
notice as soon as possible after the delivery.
(4) 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.
(5) 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.
(6) 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.
Unquote:
Is maternity leave applicable for 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 - Here 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 ML before the expected delivery date.
Depending on the responses a clear position would emerge.
From India, Bangalore
Contributing Member
xxx
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
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.
" (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 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.
(3) The maximum period for which any woman shall be entitled to maternity benefit shall
be 26 (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.
xxxxx
6. Notice of claim for maternity benefit and payment thereof. -- (1) 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.
(2) 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.
9 Ins. By Act 21 of 1972, S. 3.
10 Ins. By Act 53 of 1976, S. 3.
(3) Any woman who has not given the notice when she was pregnant may give such
notice as soon as possible after the delivery.
(4) 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.
(5) 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.
(6) 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.
Unquote:
Is maternity leave applicable for 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 - Here 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 ML before the expected delivery date.
Depending on the responses a clear position would emerge.
From India, Bangalore
Contributing Member
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Maternity Leave Policy - posting.doc
Office Order regarding Maternity Leave for Contractual employee as per Amendment Act 2017.pdf