Maternity leave in India: what you need to know

Maternity leave & rights

Maternity Benefit Act, 1961 (‘Act’) regulates maternity leave and benefits available to women employed in both the private and public sector. Maternity leave is a fully paid leave which also includes prenatal days of the pregnancy. During this period, a woman is legally allowed to be absent from the workplace. There are a couple of points to be noted here:

• According to the Act, to be eligible for maternity leave, a woman must have worked in for a period of at least 80 days in the past 12 months. Maternity leave used to be for three months but the Act has gone through some amendments. Now this period has been extended to 6 months/26 weeks for all women working in companies with at least 10 employees.
• After the maternity leave period has expired, one can use the option to work from home. This will however depend on the nature of work and terms and conditions of the employer. If you have already have two or more children, you are only entitled to 12 weeks of leave, i.e. 6 weeks pre-delivery and 6 weeks post-delivery. In case of adoption, women have the right to 12 weeks of adoption leave from the date of adoption.
• Women can ask for lighter  jobs during the pregnancy period, or jobs that do not require standing for long hours or a different department where for example and if applicable, hazardous substances are not used;
• Last but not the least; it is compulsory for every company employing 50 or more women to have an in-house crèche facility.

India vs. the West

As seen, the maternity leave policy in India seems to be surpassing many countries in the West. Let’s look at some countries. According to the Organisation for Economic Co-operation and Development’s Report:

• The U.S. has no laws with universal coverage requiring businesses to offer maternity leave! Leave differs from sector to sector, depending on the employer discretion in the shaping of maternity leave policy..
• Canada provides a working woman with up to 17 weeks off,
• France offers about 16 weeks,
• China gives 14 weeks off,
• Singapore gives 16 weeks off,
• Brazil provides 17 weeks off
• Germany offers 14 weeks similar to Japan under their maternity law.

There is also a downside to a long maternity leave. While in the West, the cost maternity leave is equally divided between different parties, such as the government, employer, insurance and other social security programs. In India, companies have to bear all the cost (salary employee on leave, employee replacement, crèche etc.). Employers can and do see this as a disadvantage and an incremental cost while hiring a pregnant woman over their male counterpart whose only cost would be his salary.

Denial of maternity leave

In case the employer does not want to give leave,   the Indian labour court can hold the employer liable to pay fine. In case the employer terminates the employment contract on the basis of maternity-leave-dispute with the woman-employee, he can face imprisonment for 3-12 months! In a recent case, a court in the state of Tamil Nadu held that ‘a woman has the fundamental right to dignity as a mother, and a maternity leave period is a part of the service period under the maternity policy in India.’

To know more about your right to maternity leaves in India and for more legal help about the same, connect to Miss Legal India now!