Maternity Benefit Act - Treatment of Leave with wages and Weekly offs in computing 80 days actually worked before EDD

Dear All,

Section 5(2) of the Maternity Benefit Act provides for the counting of holidays declared under any law currently in force as holidays with wages for computing 80 days actually worked before the preceding Expected Due Date (EDD). The said provision does not specify the treatment of weekly offs and leave with wages. Can leave with wages and weekly offs (with wages) be considered as "declared holidays under the law," or is the connotation of "with wages" the guiding principle regardless of whether it is a holiday, leave, or weekly off? Please guide.

Regards,
Manish

Dear Manish,

Every day of absence from work for which salary/wages are statutorily payable to the employee concerned should be treated as the day actually worked by him/her. Holiday, leave, and weekly off are terms of similar meaning as long as salary/wages are payable. Therefore, entitlement to wages is the basis for notionally treating such days of absence as the days actually worked by the employee for the purpose of computing a particular stretch of the period during which such days fall as continuous service for claiming maternity benefit under the Maternity Benefit Act, 1961.

However, the position is different concerning the computation of "continuous service" under Section 2-A of the Payment of Gratuity Act, 1972 where the emphasis is more on the treatment of absence as provided for in the Service Regulations of the establishment rather than wages for it.

Dear sir,

I am Amruta Sharma. I took maternity leave from 1st February 2018 to 30th July 2018. During that period, I worked from home, and the company paid me my salary. Subsequently, the company informed me about the benefits available from ESIC, so I made a claim and received the money from ESIC. However, after receiving the money, my HR team received an email from ESIC seeking confirmation regarding my maternity leave and salary received from the companies.

The email from ESIC stated:

Dear Sir(s),

The above-named employee of your factory has submitted a certificate of Form 10 for the period 01/02/2018 to 01/08/2018. It has been declared that he/she did not work on any day during this period. Furthermore, it has been declared that he/she did not receive wages as defined under section 2(22) of the ESI Act, 1948 for any leave, holiday, weekly off, lay off, or strike for any day during the stated period.

I kindly request your confirmation on the form provided within ten days of receiving this Form.

Could you please guide me on what will happen in this case and what steps I need to take?

Thank you for your assistance.

Dear friend,

You were on maternity leave from February 2018 to July 2018. However, you were required to work from home during that period for which your employer paid your salary. Therefore, strictly speaking, you were not on leave at all. How can you then claim benefits under the ESI Scheme? Both your employer and you have acted in gross violation of the provisions of Section 4 of the Maternity Benefit Act, 1961.

Furthermore, by making a false claim, you run the risk of being prosecuted under Section 84 of the ESI Act, 1948. It would be advisable to withdraw your claim immediately. I am unsure how the HR department could have advised the management to engage in such actions.