Clarification regarding the maternity law for female employees

615 votes

Any contract which is in contravention to the laws enforced by the government of India are void ab initio (has no validity at all from the time parties entered into the contract). You may be prosecuted as per the laws of the land for compelling the parties to have such contract at its first place. Secondly if the laws grant you the leave of 26 weeks which shall be paid then you have to comply with it. There is no other way.

Advocate Pulkit Prakash LawRato

970 votes

Well, a lot would depend on the number of employees you have. Prima facie, when a law is made enforceable, it must be adhered to and respected in its letter and spirit (fixed period of 26 weeks for pregnancy and any further leave post the pregnancy will be as per the rules of the company). Your query seems to be an attempt to somehow dilute the applicability or seek a way out of from following the law. In absence of specific details, all I can say is that if the new act is applicable to your establishment (depending on strength of employees) you will have to follow it. However, on the question of an agreement that allows the female employees to let go of their salary (paid leave), it will need to be examined in detail. Whether a right granted by law can be given up by an employee needs careful and proper legal consideration. The bottom line is that such an agreement will have to stand in a court of law and as such needs the strictest examination. The employees also have option to work from home post their pregnancy depending on nature of work. Have you also considered the angle of provision for a creche under the new law? Would suggest you seek a proper legal opinion (well reasoned) on this. If you need further help, do let me know.

Advocate Joydeep Nath LawRato

951 votes

This law is mandatory and cannot be overriden by an agreement. Any attempt to override the law may invite penal action against any violation.
The leave policies cannot be discriminatory.

Under the new Act, the maternity benefit could be availed by women for a period extending up to 8 weeks before the expected delivery date and remaining 18 weeks can be availed post childbirth. For women who are expecting after having 2 children, the duration of paid maternity leave shall be 12 weeks (i.e., 6 weeks pre and 6 weeks post expected date of delivery).
For specific advice in case of your particular establish, more details are required.

Advocate Tahir Ashraf Siddiqui LawRato