Every working woman, who works as part of the Government structure or in a corporate framework, is entitled to maternity leaves 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.
Maternity leave for private sector firms is often overlooked and people suffer more due to hesitation. Women fear losing their job but fail to ask the management about how to apply for maternity leave in India.
Recently, the Madras High Court held that a woman has the fundamental right to dignity as a mother, and the maternity leave period is a part of the service period under the maternity policy in India.
To have a better understanding of what is maternity and paternity leave in India
, one has to go through the Maternity Benefit Act, 1961
. In India, the maternity leave policy follows a straight jacket formula of 26 weeks paid leave and childcare leave post-birth.
Maternity Benefits under the Maternity Leave Act in India
The key features and implications of the Maternity Benefits Act, 2017 stating the maternity leave rules in India are:
- 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.
- 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.
- 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.
- 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.
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. Or she can ask to work in a section where hazardous substances are not used.
Along with this, there includes an additional benefit in the maternity leave policy of India for working mothers. The new maternity leave rules in India includes a non-discriminatory performance appraisal system acknowledging the absence of female employees.
Awareness: This Act makes it compulsory for employers to educate women about the eligibility of maternity leave, at the time of their appointment.
What is the Maternity Leave Policy in India?
Maternity leaves in India mean a period legally allowing an Indian woman to be absent from work for a stipulated number of weeks before and after she gives birth. This period is indispensable so as to take care of the new-born child/children in the early stages of their infancy:
- This time period of leave also includes the last few weeks of pregnancy for the women, also known as parental leave.
- The Maternity Benefit Act, 1961 regulates the law of maternity leaves in India, which lays down the provisions relating to several benefits that mothers receive in India.
- The Act also states the nature of maternal leave and employment benefits available to women employed in both the private and public sectors.
- This is a ‘fully paid leave’ available to a pregnant and lactating working woman, to take care of herself and her child.
As the maternity leave law in India was amended by the Maternity Benefit (Amendment) Act, 2017 which came into effect on April 1, 2017, it extensively modifies the old Maternity Act in India and is applicable to all mines, plantations, shops, establishments, and factories employing 10 or more employees, whether in the organized or unorganized sector.
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. Also, the payment during the leave period is based on the average daily wage for the period of actual absence as per the reformed maternity leave law in India.
Initially, Indian maternity leave was for three months, but after the Amendment, the maternity leaves in India was extended. Now, it's more than 6 months of maternity leave in India for all women working in companies with at least 10 employees. However, a woman who has two or more children is entitled to 12 weeks of pregnancy leave in India.
Maternity Benefits: Indian Maternity Leave Policy Vs. Abroad
With such a reformation in the maternity leave rules for contractual employees, leave policies in both private companies and the government sector, India now surpasses many countries, both in terms of providing maternity benefits and maternity leave laws for working mothers.
However, when it comes to paid maternity leave in India, this reformation has brought us ahead of most countries with respect to maternity leave laws. 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
Many countries divide the price of maternity leave equally between the government, employer, insurance and other social security programs. As per the new maternity leave policy in India, companies have to bear all the costs.
In view of the highlights mentioned in the amendment of the Maternity Benefit Act, 2018, there are many positives for Indian women employees and employers. However, there are significant disadvantages as well.
Indian employers still need to establish adequate infrastructure, which costs them more expenditure. Therefore giving a sliver of a chance to avail creche services for working mothers.
The employers in India will consider this as incremental cost. This includes 26 weeks of maternity leave under the pregnancy laws in India. The cost of creating creches and the cost of an employee to fill in during the female employee's absence.
Whereas, it is the understanding of many companies in India, that the cost of hiring a male candidate would constitute his salary and other statutory benefits, unlike women.
There is, however, a possibility that due to these new amendments in the pregnancy law in India, females could face reductions in upfront salaries, as companies and corporates would compensate for the higher cost. Thereby, employers can increase the contractual employment in order to avoid obligations.
Legal Actions You Can Take Against Denial of Maternity Leave in India
A good HR policy will always try to implement and ensure that women employees do not have to give up their career requisites in order to fulfill their role as a mother.
After the amendment of the act for maternity law in 2017, there are some major consequences that an employer can face for refusing to provide an expecting employee with maternity leave.
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.
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Maternity Benefit Act, 1961 - The Maternity Benefit Act, 1961, protects the employment of women during the time of her maternity period and entitles her of a ‘maternity benefit’ i.e. full paid absence from work to care for her child/children.
Maternity Benefit (Amendment) Act, 2017 - The Act has made amendments to the Maternity Benefits Act, 1961. The main aim of the Act is to regulate the employment of women during the period of childbirth. It has amended the provisions related to the duration and applicability of maternity leave, and other facilities.