Maternity Leave from Quora

 

Maternity Leave

 

Every working woman, who works as part of the Government structure or in a corporate framework, is entitled to maternity leaves in India. Maternity Leave in India 2019 in the Gov./private sector is an indispensable right of every woman. As per Maternity Benefit Act,1961 in India. These are fully paid leaves provided to working women who’re expecting a child.

Parenting laws in India have been the topic of dispute between employers and employees. Maternity policy in India is the prime one.

In India, the maternity leave policy follows a straight jacket formula of 26 weeks paid leave and childcare leave post-birth.

Let me tell you Maternity Benefits under the Maternity Leave Act in India

1.     Maternity leave duration: The duration of pregnancy leave under the Maternity Benefit Act in India has been increased to 26 weeks from 12 weeks. The extended period is applicable to women in the case of the first and second children. For women who are expecting a child after having two children, the duration of paid maternity leave in India shall be 12 weeks i.e. 6 weeks pre-delivery and 6 weeks post-delivery.

2.     Under the Maternity Benefit Amendment Act, this benefit could be availed by women for a period extending up to a maximum of 8 weeks before the expected delivery date and the remaining time can be availed after childbirth.

3.     For adoptive and commissioning mothers: As per the newly amended maternity laws, the Act now extends to adoptive mothers as well. Every woman who has adopted a child will get 12 weeks of adoption leave in India from the date of adoption.

4.     Work from home: As per the newly implemented Maternity Law in India, there is now the option of ‘work from home’ also available for mothers. After the leave period of 26 weeks has expired, a woman can use this option to do her work from home. One can even modify this option according to the nature of work, as the employer levies the terms and conditions.

5.     Crèches: As per the amended maternity leave law in India, it is compulsory for every establishment employing 50 or more women to have in-house crèche facilities. Thereby allowing them to visit the facility at least four times during the day.

6.     A working woman has the complete right to ask for light jobs during her pregnancy period. She can avoid the work which requires standing for long hours.

7.     This Maternity Benefit Act is applicable to all mines, plantations, shops, establishments, and factories employing 10 or more employees, whether in the organized or unorganized sector.

8.     As per the Act, for eligibility of maternity leave, a woman must have been working as an employee in an establishment for a period of at least 80 days in the past 12 months.

An exception being the United Kingdom, where the country’s law offers women with 39 weeks of maternity leave.

According to the Organisation for Economic Co-operation and Development Report, the countries have the following maternity leaves:

·         The United States has zero maternity leave policy

·         Canada provides its working woman with up to 17 weeks off

·         France offers about 16 weeks

·         China gives 14 weeks off

·         16 weeks are off in Singapore

·         Brazil provides 17 weeks off

·         Germany offers 14 weeks similar to Japan

As per the amendment in the act of maternity leave in India 2018, it’s mandatory for all corporates and other establishments to enforce the new maternity leave rules as described below:

·         Maternity leave will be extended from the present three months to six months by an organization. However, an organization can revoke maternity benefits in India only in case a woman employee changes her job during that period.

·         Extension of the benefits of this Act to all women employees, including those who are already on leave. If an employer violates the maternity benefit law and maternity rules in India then he/she is liable for punishment. The violation can be done by discharging or dismissing a pregnant employee for being absent due to pregnancy, delivery or post-natal illness.

·         As per the Labour Law in India, the rules for maternity leave in India supports a woman employee, where she can file a case in labor court against the employer for her dismissal or discharge on account of such absence.

·         If the employer denies maternity benefit to a female employee, the labor court can hold the employer liable to imprisonment for 3 months, fine the employer with an amount up to Rs. 5000, or both, as per the rules for maternity leave in India.

 

Facts and Laws – Rights, safeguards for working women

The Factories Act

  1. No woman employee can be forced to work after 7:00 pm. If at all they work overtime, only 2 hours over time is allowed. Cab must be provided for them with doorstep drop if they logoff after 7:00 pm; either a male associate or a security guard should be in the cab while dropping any female employee.
  2. Cab details must be sent to the employees prior to their pickup time.
  3. Company logo sticker must be there in the front mirror.
  4. Cab driver must wear his ID card given by the company/transportation provider
  5. Woman employee cannot be asked to work on a holiday as the only person in the ODC/floor. At least one person from the team should accompany her.

Maternity Benefits Amendment Act:

  1. Increased Paid Maternity Leave: The MB Amendment Act has increased the duration of paid maternity leave available for women employees from the existing 12 weeks to 26 weeks. Under the MB Amendment Act, this 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).
  2. Maternity leave for adoptive and commissioning mothers: The MB Amendment Act extends certain benefits to adoptive mothers as well and provides that every woman who adopts a child shall be entitled to 12 weeks of maternity leave, from the date of adoption.
  3. Work from Home option: The MB Amendment Act has also introduced an enabling provision relating to “work from home” for women, which may be exercised after the expiry of the 26 weeks’ leave period. Depending upon the nature of work, women employees may be able to avail this benefit on terms that are mutually agreed with the employer.
  4. Crèche facility: The MB Amendment Act makes crèche facility mandatory for every establishment employing 50 or more employees. Women employees would be permitted to visit the crèche 4 times during the day. Do we all really have this facility??
  5. Employee awareness: The MB Amendment Act makes it mandatory for employers to educate women about the maternity benefits available to them at the time of their appointment.

The Contract Labour (Regulation & Abolition) Act, 1970:

Provision of crèches were made where twenty or more women are ordinarily employed as contract labor. Female contract labor is to be employed by any contractor between 6:00 am to 7:00 pm only with the exception of mid-wives and nurses in hospitals and dispensaries.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:

  1. Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
  2. The Complaints Committees have the powers of civil courts for gathering evidence.
  3. The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
  4. The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs 5000 on the person who has breached confidentiality.
  5. The Act requires employers to conduct education and sensitization programmes and develop policies against sexual harassment, among other obligations.
  6. Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to ₹ 50,000. Repeated violations may lead to higher penalties and cancellation of license or registration to conduct business.[20]
  7. Government can order an officer to inspect workplace and records related to sexual harassment in any organization.
  8. The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
  9. While the “workplace” in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces which involve tele-commuting will get covered under this law.

Here are some maternity leave rights:

Maternity leave laws vary from state to state. These rights reflect the requirements for women to get the benefit and the benefits that they can avail during that period.

-Seek Legal Help

In case you still get denied for the leave even after the involvement of the labor department, the time has come to take the company to the courtroom. But you must have the evidence you fulfill the necessary terms and were indeed denied the maternity leave by your employer. To have all this with you, take every step on papers so that you do not run out of proofs against the company.

-Take it to the Labor Department:

Now that your employer is not ready to understand anything politely, you must move a step further to let him your rights. Take the matter to the labor department of the respective state. Every state has its labor department. Before taking this step, you must make sure that you fulfill the requirements to get the benefit.

Conclusion: You should know that according to some states laws, the men are also eligible to avail this benefit for a specific term in the first year of welcoming a new child in the family. Not just by the laws, but these parameters vary with every company out there. If your employer rejects your plea to get the leave, follow the steps given above to get your application approved. Take care, and stay fit.


Citizens play a vital role in execution of law and order. As far as Maternity Benefit Act is concerned, company management, employee, and the state are the parties right. I believe 99.99% companies in India follow the Maternity Benefit rules. The .01% probably face legal consequences. Employee can take legal action against the management when Maternity Benefit is denied.

A labour law practitioner could assist an employee to file a case. However any female employee who plan to apply for Maternity Leave shall give attention to the following.

  1. Refer the company policies and appointment order
  2. Refer maternity benefit act and rules
  3. Intimate the plan to go on Maternity Leave to Manager and HR, in advance in writing
  4. If Manager or HR intimates that Maternity Leave can not be processed or encourage to resign, make sure to keep substantial evidence of that communication.
  5. If the company deny the Maternity Leave, again send an appeal to Management via HR with a medical certificate and tentative date of beginning of Maternity Leave
  6. If not receiving any reply from Management, send a follow up letter to Manager, HR, and CEO seeking a reply.
  7. If receiving any termination letter or evidences of coercion like unusual transfer, demotion to a lower level, initiation of disciplinary proceedings etc., keep artifacts in safe custody as these all can be evidences.
  8. Management may try to put employee under stress to force employee to resign and leave. If such a situation arise, try to keep evidences of such attempts. Also never become a victim of stress and strain and try to be calm and relaxed.


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