37. Length of eligible period and entitlement to maternity allowance.

(1) (a) Every female employee shall be entitled to maternity leave for a period of not less than sixty consecutive days (also referred to in this Part as the eligible period) in respect of each confinement and, subject to this Part, she shall be entitled to receive from her employer a maternity allowance to be calculated or prescribed as provided in subsection (2) in respect of the eligible period.

(aa) Where a female employee is entitled to maternity leave under paragraph (a) but is not entitled to receive maternity allowance from her employer for the eligible period under paragraph (c), or because she has not fulfilled the conditions set out in subsection (2)(a), she may, with the consent of the employer, commence work at any time during the eligible period if she has been certified fit to resume work by a registered medical practitioner.

(b) Subject to section 40, maternity leave shall not commence earlier than a period of thirty days immediately preceding the confinement of a female employee or later than the day immediately following her confinement.

Provided that where a medical officer or the registered medical practitioner appointed by the employer certifies that the female employee as a result of her advanced stage of pregnancy is unable to perform her duties satisfactorily, the employee may be required to commence her maternity leave at any time during a period of fourteen days preceding the date of her confinement as determined in advance by the medical officer or the registered medical practitioner appointed by the employer.

(bb) Where a female employee abstains from work to commence her maternity leave on a date earlier than the period of thirty days immediately preceding her confinement, such abstention shall not be treated as maternity leave and she shall not be entitled to any maternity allowance in respect of the days during which she abstains from work in excess of the period of thirty days immediately preceding her confinement.

(c ) Notwithstanding paragraph (a), a female employee shall not be entitled to any maternity allowance if at the time of her confinement she has five or more surviving children.

(d) For the purposes of this Part, “children” means all natural children, irrespective of age.

(2)(a) A female employee shall be entitled to receive maternity allowance for the eligible period from her employer if:

(i) she has been employed by the employer at any time in the four months immediately before her confinement; and

(ii) she has been employed by the employer for a period of, or periods amounting in the aggregate to, not less than ninety days during the nine months immediately before her confinement.

(b) A female employee who is eligible for maternity allowance under subsection (1)(a) shall be entitled to receive from the employer for each ‘day of the eligible period' a maternity allowance at her ordinary rate of pay for one day, or at the rate prescribed by the Minister under section 102(2)(c), whichever is the greater.

(c ) A female employee employed on a monthly rate of pay shall be deemed to have received her maternity allowance if she continues to receive her monthly wages during her abstention from work during the eligible period without abatement in respect of the abstention.

(d) Where a female employee, claims maternity allowance under this section from more than one employer, she shall not be entitled to receive a maternity allowance of an amount exceeding in the aggregate the amount which she would be entitled to receive if her claim was made against one employer only.

(3) Where there are more employers than one from whom the female employee would be entitled to claim maternity allowance in accordance with subsection (2) the employer who pays the maternity allowance shall be entitled to recover from such other employer, as a civil debt, a contribution which shall bear the same proportion to the amount of the maternity allowance paid to the female employee as the number of days on which she worked for such other employer during the period of nine months immediately preceding her confinement bears to the total number of days on which she worked during the said period.

Provided that if the female employee has failed to comply with section 40(1) or (2), the employer who pays the maternity allowance shall not thereby be prevented from recovering contribution calculated in accordance with this subsection.