This is an interesting discussion. The inputs from learned experts/members shall enrich the forum.
Mr. Rohit has given valuable advice. Kindly follow it.
Given below is a heartfelt opinion only.
You may take a qualified and suitable decision.
You have posted that:
“if she has exhausted the 4 months leave given for maternity.”
“but is unable to return to work due to medical issues.”
What is your establishment a Govt. Undertaking, PSU…..etc.
It is felt that for Women Employees of State Public Sector Undertakings / Statutory Boards……the Maternity Leave has been enhanced from 90 to 180 days.
Probably the medical issues/complications are due to pregnancy/delivery and the employee has been submitting Doctor’s Rx/advice for seeking leave for treatment of complications arising out of pregnancy/delivery or to meet the family obligations post delivery. The condition of the lady may be just and justified for extended leave even if unpaid. Does your company offer Parental Leave, Child Care Leave and permit it immediately after Maternity Leave? Does your company allow combining maternity leave with any other leave of any kind?
Female anatomy is complex and a lady risks her life while giving birth to a child.
The effects on the health can be far reaching and in case of some ladies more time may be required to return to normalcy. A small mistake can adversely affect the health of the female may even render her unable to reproduce later.
While employer may insist that the lady may resume duties at the earliest the lady may feel that her body does not allow it to join now and she needs some more time.
It is suggested that the temptation for termination may be avoided and employee may be rather cajoled to return back to work first even if she works from home. Reach an agreement. Avoid your decision being termed discriminatory and bad.
HR/personnel/employee relations must have capability and credentials to handle such situations and to avoid implications which can be penultimate for employee and employer.
These disciplines have their duties and responsibilities cut out for them, including: “Preparing for Employee Termination.” And avoid “Wrongful Termination” also “Adjustment for Employees who are Pregnant, on maternity leave, on leave after delivery.”
Do you have a reason for Termination which is unrelated to leave?
(This may not be an easy task.)
Do you have a reason that employee is feigning sickness?
Do you have a reason that the employee is making false claims of family obligations?
Have you sufficiently adhered to principle of natural justice?
Would you feel that it shall be appropriate to take some gentle but conclusive steps before issuing order ofd termination e.g. to offer to the lady that company would support her admission in a specialized hospital for specialized treatment and let the specialist in the hospital declare her fit to resume duties???
Assuming that the employee in question is deliberately avoiding returning to work despite having been granted 4 month’s leave the employer can always fill for her as one fine day she may return and stay or return to leave or she may decide not to return.
Even if the decision in such a matter is to be taken by say Chairman of the company these disciplines should help the authority so that matter is not looked at with blurred vision.
United Nations adopted the "Convention on the Elimination of all
Forms of Discrimination against Women". Article 11 of the Convention provides as under:
"Article 11
1. States/parties shall take all appropriate measures to eliminate discrimination against women in the field of
employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) the
right to work as an inalienable right of all human beings:
(f) the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
(c) to encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life
These are cited by and referred to in judgments by courts of Law e.g.
Madras High Court, Tmt.K.Geetha vs The Director Of Municipal ... on 19 December, 2011, DATED: 19.12.2011
And
Madras High Court, L.Kannaki vs The Secretary To Government on 20 December, 2011
DATED: 20.12.2011
There might be other court judgments covering finer points as mentioned in your post as well.
Kindly proceed as deemed fit at your end.