Introduction
Balancing Work and family is probably one of the biggest struggles professionals face today. As the demands of the corporate world continue to grow, it often becomes difficult for employees to maintain a work-life balance and spend enough time with their families. India is a progressive country with well-designed laws to support working parents, ensuring that both parents have the right to take leave to care for their child without sacrificing their careers.
Parental leave legislation frameworks developed in India over the years to ensure that employee rights are protected whenever possible. Employers and employees must understand and comply with these laws to ensure a fair and equitable workplace. This article discusses maternity, paternity, and adoption leave, employer obligations, and upcoming changes to parental leave in India.
As work-life balance gains more traction, we see more and more professionals calling for better paternity policies to better support both men and women. Despite some advances in maternity leave benefits for women in India, there is still a long way to go in terms of provisions for paternity leave and gender-neutral policies more broadly. Employers must understand that having an inclusive workplace—where employees can return to their parental duties without sacrificing their career—is critical.
Employers need to do their part to stay compliant and also read the rights, the laws, and any guidelines to comply with the parental leave policies in India. They need to be updated about the relevant labour laws, the rights of employees, and the best practices followed across the industry in this regard. Read our article Legal Implications of Extended Family Leave Protections.
What is Parental Leave in India?
- Parental Leave: The authorized time away from work that can be used to care for a newborn, an adoption, or to support their spouse during childbirth.
- Why Parental Leave Matters: It allows parents to care for their child without fear of losing their job or facing financial strain. It also fosters gender equality at home and in the workplace.
- Types of Parental Leave: Includes maternity, paternity, adoption, and leave for surrogate parents.
- Worldwide Comparison of Parental Leave Benefits: Countries like Sweden and Canada provide ample paid parental leave, while India lags in ensuring proper leave for fathers.
- Effect of Parental Leave Laws: Employees are more satisfied, more productive, and have a lower turnover rate with effective parental leave policies.
Motherhood Leave Laws in India
The Maternity Benefit Act, 1961
This act provides paid maternity leave to working women before and after the birth of their children to allow them time to recuperate.
- Eligibility Criteria: Women working in the government and private-sectors with a minimum of 80 days of work in the last 12 months are eligible for maternity benefits.
- Length of Paid Maternity Leave:
- 26 weeks, for the first two children.
- 12 weeks for a third child, and beyond.
- 6 weeks in case of abortion or medical termination of pregnancy.
- Other Benefits under the Employees’ State Insurance (ESI) Scheme: The ESI Scheme provides wage compensation to women insured and eligible according to the ESI guidelines.
- Employment Rights for Pregnant Workers: Employers cannot terminate a pregnant woman during maternity leave. Workplaces with 50 or more employees are required to provide a crèche facility.
- Flexibility post-maternity leave: Work-from-home options or reduced working hours can be requested by the women as per company policies.
Rights and Challenges: Paternity Leave in India
- Lack of a Uni form Paternity Leave Policy: In India, there is no central law mandating paternity leave in the private-sector, in stark contrast to maternity leave.
- Paternity Leave for Government Employees: Male government employees can avail up to 15 days of paid paternity leave, which can be taken before or within six months of childbirth.
- Paternity Leave in the Private-Sector business:
- 5-15 days of paternity leave is offered depending on HR policy in some organizations.
- Many private firms do not offer paternity leave, leaving fathers without legal rights to exercise.
- There is a need to increase gender-neutral parental leave.
- Fatherhood Challenges: Stigma, fear, lack of information, and cultural bias discourages men from utilizing paternity leave.
- Organizational Best Practices: Forward-thinking companies are setting industry standards by implementing progressive paternity leave policies to follow.
Leave Rights for Adoption and Surrogacy
- Adoption Leaves for Female Employees: A woman adopting a child under the age of three months is entitled to 12 weeks of paid leave.
- Surrogacy Leave Rights: Commissioning mothers (those who choose surrogacy) are eligible for 12 weeks of leave.
- Employer Legal Requirements: Employers must align with regulations regarding adoption and surrogacy leave rights for employees.
- Challenges Faced by Adoptive and Surrogate Parents: Many employers have not implemented clear policies regarding such leave, resulting in inconsistency in its implementation.
What Are Employers Required to Do?
- Maternity Benefit Act Responsibilities: Provide paid maternity leave, job security, and other benefits as mandated by law.
- Compliance Features: Parental leave policies must be followed, or else companies could face legal issues.
- Penalties for Non-Compliance: Employers who violate the Maternity Benefit Act can be penalized and face legal action.
- Designed a Supportive Work Environment: Encourage policies that favour family, such as flexible work hours and telecommuting, where possible.
How to Apply for Maternity Leave in India
The Application Process: Step by Step
Applying for Maternity Leave in India can be tricky since there is a process, as outlined in the Maternity Benefit Act, 1961. To ensure smooth application, follow this step-by-step process:
- Check Eligibility
- Make sure that you have been employed by your employer for a minimum of 80 days in the previous 12 months to be eligible for paid maternity leave.
- Having coverage under the Employees’ State Insurance (ESI) Act is also an advantage, but you must meet the contribution requirements.
- Let Your Employer Know in Advance
- You should notify your employer at least 8 weeks before your expected due date.
- Make a written request via your company’s HR portal or through other communication channels as per your company’s policies.
- Submit Maternity Leave Application
- Write a leave application to be submitted to your employer or the HR department.
- Provide details such as the date of expected delivery, leave requested, and, if required, any medical documentation.
- Attach Medical Certificates
- Get a medical certificate from a duly registered medical practitioner that states the pregnancy and the expected date of delivery.
- For example, if you’re having a C-section or have medical complications, you may need additional medical documents.
- Get Employer’s Approval
- Get your employer to confirm in writing your leave once it is approved.
- Some companies may ask you to sign some additional papers regarding work transitions before the leave begins.
- Prepare for Work arrangements post-maternity
- Discuss any options for working from home, reduced working hours, or gradual return-to-work plans your company offers before your leave ends.
- Access Maternity Benefits (if eligible and applicable)
- If applicable, file Form 19 for maternity under the ESI Scheme.
- Those working in the private-sector would have to liaise with the HR department of their employers regarding the salary disbursement during leave.
Documents Required and Steps to Follow
To file for maternity leave, female employees are required to submit such documentation to satisfy labour law and employer policy.
Documents Required for Maternity Leave Application:
- Letter for Applying for Maternity Leave
- A request for leave along with duration and reason.
- Physician’s Certificate from a Certified Doctor
- Certificate confirming the pregnancy and due date.
- Extended Sick Leave/Doctor’s Recommendation (if applicable)
- If complications arise, such as miscarriage, or premature delivery.
- Company-Specific Forms (if required)
- Sometimes organizations require employees to fill out an internal maternity leave form.
- Employee ID and Work Records
- To verify tenure of employment and eligibility for maternity leave.
- ESI Documentation (if employees are applicable)
- Includes the ESI card and form 19 for getting approvals under the Employees’ State Insurance scheme.
How to file for maternity leave:
- Submit your documents as necessary to the HR department at least 2 months before the due date.
- For employees working in a government organization, process leave through the concerned employee portal or submit it in writing.
- However, employees must ensure that they receive a formal confirmation from HR stating that their leave request has been approved.
Eligibility for Paternity Leave in India
There is an absence of a standard paternity leave law in India for employees in the private sector, unlike maternity leave. However, some employees qualify for paternity leave under existing policies.
Paternity Leave Eligibility in India:
- Government Employees:
- Male employees in central or state government departments are eligible for up to 15 days of paternity leave.
- Leave may be taken up to 6 months before/after the childbirth.
- Private-Sector Employees:
- There is no law requiring paternity leave in the private sector.
- Some progressive companies offer 5 to 15 days of paternity leave.
- Employees should review their organization’s HR policy to determine whether they qualify.
- Contractual/temporary employees:
- Paternity leave is voluntary on the part of the employer, so most contract-based workers have no access to it.
- Self-Employed Individuals:
- Self-employed fathers are not covered by a formal paternity leave policy.
How to Apply Paternity Leave
The process for applying for paternity leave in government and private companies is different.
Steps to Apply for Paternity Leave in Government Jobs:
- Check Leave Policy:
- The Central Civil Services (Leave) Rules, 1972, entitle male employees up to 15 days of paid leave.
- Inform Employer in Advance:
- Notify the HR department before 15–30 days of availing the leave.
- Submit a Formal Demand Letter:
- Write an application specifying the leave duration and anticipated date of delivery.
- Attach Supporting Documents:
- Attach a copy of the pregnancy confirmation certificate or medical records.
- Await Official Approval:
- The HR department processes this request and issues a formal sanction.
Steps to Apply for Paternity Leave in Private Jobs:
- Check Company Policy:
- Paternity leave ranges from 5 – 15 days for certain MNCs and startups.
- Draft a Leave Request:
- Write a formal letter to HR or the reporting manager for paternity leave.
- Provide Necessary Proof:
- Provide a doctor’s letter stating the expected delivery date.
- Follow Up for Approval:
- HR has discretion in approving paternity leave since it is not legally required.
Paternity Leave Work Certification Documents:
- Leave Application Letter for Paternity Leave: Mentioning duration and reason for leave.
- Medical Proof of Pregnancy: A letter or report from a registered doctor confirming the expected delivery date.
- Employee ID Proof: For employment status verification.
- Official Company Form (if applicable): Some private companies have specific paternity leave forms.
Final Thoughts
- Paternity leave is still taking shape in India, while maternity leave is demarcated within the ambit of labour law.
- Government workers have structured leave available to them, while private-sector employees must follow company-specific policies.
- Employees are encouraged to review HR policies and submit formal applications early to avoid disruption to work.
- As conversations around gender-neutral parental leave gain momentum, we may hopefully see improvements in regards to paternity benefits offered in India.
FAQ on Parental Leave in India
Q1: What is the duration of maternity leave offered in India?
The law entitles women to 26 weeks of paid maternity leave for their first two children.
Q2: Does the private-sector have a mandatory paternity leave policy?
No, there is no law in India mandating paternity leave for employees of the private sector.
Q3: Do adoptive mothers get parental leave?
Adoptive mothers are entitled to 12 weeks of time off for children under the age of three months.
Q4: Is it possible for employers to refuse parental leave?
No, there is a violation of the Maternity Benefit Act if legally entitled parental leave is denied.
Q5: What happens if a company does not comply with parental leave regulations?
Employers who do not comply could face legal action and fines.
Conclusion
Work-life balance is an important area of employee well-being. It fosters an inclusive and supportive work environment, which can be further enhanced by stronger parental leave policies. No employer can properly manage if they are not complying with parental leave laws, or are not engaged in building family-friendly workplaces that help employees to balance work with their professional and personal lives. The future of parental leave in India is working towards being progressive, enabling both employers and employees to reap the benefits of a balanced workforce.
About Us
Corrida Legal is a boutique corporate & employment law firm serving as a strategic partner to businesses by helping them navigate transactions, fundraising-investor readiness, operational contracts, workforce management, data privacy, and disputes. The firm provides specialized and end-to-end corporate & employment law solutions, thereby eliminating the need for multiple law firm engagements. We are actively working on transactional drafting & advisory, operational & employment-related contracts, POSH, HR & data privacy-related compliances and audits, India-entry strategy & incorporation, statutory and labour law-related licenses, and registrations, and we defend our clients before all Indian courts to ensure seamless operations.
We keep our clients future-ready by ensuring compliance with the upcoming Indian Labour codes on Wages, Industrial Relations, Social Security, Occupational Safety, Health, and Working Conditions – and the Digital Personal Data Protection Act, of 2023. With offices across India including Gurgaon, Mumbai, and Delhi coupled with global partnerships with international law firms in Dubai, Singapore, the United Kingdom, and the USA, we are the preferred law firm for India entry and international business setups. Reach out to us on LinkedIn or contact us at contact@corridalegal.com/+91-8826680614 in case you require any legal assistance. Visit our publications page for detailed articles on contemporary legal issues and updates.