Maternity Leave in India: Legal Rights and Protections for Working Women

Introduction

Motherhood is a beautiful experience, but also full of challenges, especially for working women with professional and personal commitments. The employee rights during and after maternity leave in India are legally protected. The Maternity Benefit Act,1961, provides reasonable time off and pay to the mother before and post childbirth. However, many Indian women are still ignorant about their maternity leave rights and how to protect themselves from workplace discrimination.

Under the Maternity Benefit Act, eligible female employees are allowed to take a paid maternity leave of 26 weeks. However, many employers circumvent these laws by pressuring people to resign, accept demotions, or have their contracts terminated. Employee rights after maternity leave are in place to help prevent such injustices.

This article provides an overview of maternity leave eligibility, job protection laws, employer obligations, and the next steps if your rights are violated. Whether you are an expectant mother, an employee returning to work, or an employer, this guide will walk you through the legal landscape of maternity rights in India.

All about the Maternity Benefit Act, 1961

The primary law governing maternity leave in India is the Maternity Benefit Act, 1961, which entitles female employees to paid leave, job security, and health benefits during pregnancy and post-childbirth.

Who is Covered Under the Maternity Benefit Act, 1961?

Women working in the government, private, and unorganized sectors with at least 80 days of work in the preceding 12 months.
For businesses with 10 or more employees
Women workers from the self-employed and informal sectors are covered under ESIC maternity benefits.

The Maternity Benefit Act: Key Provisions

26 weeks of paid maternity leave for the first two children (8 weeks of maternal leave (pre-delivery) and 18 weeks of maternal leave (post-delivery).
It offers 12 weeks of leave for the third child and beyond.
A medical bonus of ₹1000/- will be provided by the employer if the employer does not provide free medical care (Hospitalisation before delivery and care of the mother after delivery).
Termination or demotion due to pregnancy or maternity leave.

Exceptions and Special Cases

Adoptive mothers and commissioning mothers (surrogacy cases) receive 12 weeks of leave.
A woman shall be entitled to 6 weeks’ leave in case of miscarriage or medical termination of pregnancy.

Employee Rights During Maternity Leave

A working woman’s rights during maternity leave in India provide her with financial, medical, and job-related benefits during this period.

1. Income Continuity and Paid Maternity Leave

The maternity pay from the employers is the total wages calculated based on the average daily wages, and it should be paid in full.
Maternity Benefits under ESIC: — Medical expenses and leave salary.

2. Benefits and Job Flexibility During Maternity Leave

Employers cannot dismiss an employee on the grounds of pregnancy or maternity leave.
It is illegal to dismiss, demote, or transfer a woman without her consent.

3. Options in Addition to Maternity Leave Benefits

Prenatal medical treatment and allowances.
Nursing mothers’ breaks returning to work
Creche facility for companies with 50 employees.

Rights of Employees Returning from Maternity Leave

Picking up work after maternity leave can be difficult. Yet gender rights have kept women from facing discrimination in the workplace after maternity leave.

1. Right to Reinstatement

Women have the right to be reinstated in their former job or a comparable one.
Job roles cannot be changed, salary reduced, or promotions denied because of maternity leave.

2. The law protects from discrimination in the Workplace

Where a woman is demoted, irrationally transferred, or harassed, she may have a remedy for a maternity leave violation complaint.
There are also provisions for equal pay for equal work under the Equal Remuneration Act, 1976, which states that no female employee should face pay cuts during her maternity leave.

3. Flexible work arrangements for Nursing Moms

The right to break to nurse during work hours.
Pick to ask for adaptable working hours or to work remotely.
Access to crèche facility during working hours.

What Do Maternity Laws Say About Employer Obligations?

In India, employers are legally required to follow maternity leave policies.

1. Enforcement of maternity leave laws

Paid maternity leave and job security must be provided by employers.
Mandatory Crèche facility for organisations with 50 or more employees.

2. Ramifications for not complying

In India, maternity rights are protected by law, and all employers are required to comply with these laws.
Employers who violate the Act could face a fine of up to ₹5,000 or 1 year in prison.

3. How to file a complaint against an Employer?

File a grievance with the Labour Commissioner or the Ministry of Women and Child Development.
File a legal case under the Maternity Benefit Act.

Requirements to Qualify for Maternity Benefits in India

The Maternity Benefit Act of 1961 was enacted to ensure women have certain rights protected by the law while they are pregnant and subsequently, after they have given birth, since many women lose their jobs during this period. However, not all employees qualify by default. Here is a detailed guide on the eligibility criteria for claiming maternity benefits in India:

1. Employment Duration Prerequisites

Maternity leave benefits are only available to employees who meet the following requirements:

Minimum Work Duration: The woman must have worked for more than 80 days in the 12 months immediately preceding the presumed delivery date.
Covered Employment: Women working in factories, mines, plantations, shops, and establishments with more than 10 employees in the preceding 12 months are covered by the Maternity Benefit Act, 1961.
ESIC Coverage: For women working in organized sectors and earning ₹21,000 or less as a salary every month (₹25,000 for a person with disability), they qualify for maternity benefits under the Employees’ State Insurance Corporation (ESIC).
Maternity Benefits to Unorganized Sector & Contract Workers: Though contract workers and daily wage labourers are covered under the Maternity Benefit Act, implementation continues to be poor in the unorganized sector. Women in the informal sector, however, need to be aware of their employer’s maternity policies.

Proof of Eligibility

Medical certificates confirming pregnancy must be submitted by the employee.
To confirm the 80-day work requirement, you may need payroll records and attendance data.

2. Scenarios with Specific Provisions

The typical maternity leave in India is 26 weeks, with certain exceptions for some people:

A. Multiparous Women (Two+ Children Surviving)

In case a woman is having her third or higher baby, total maternity leave is reduced to 12 weeks.
There are still 6 weeks of pre-delivery leave, while the post-delivery leave is only for 6 weeks.

B. Leave for Adoptive and Commissioning Mothers

As per the 2017 amendment to the Maternity Benefit Act, 1961, special provisions are made for:

Adoptive Mothers
- A woman who adopts a child younger than 3 months receives 12 weeks of maternity leave.
- The leave is effective from the date of adoption.
Mothers as Commissioning (Surrogacy Cases)
- A commissioning mother is entitled to 12 weeks of leave. Leave starts from the date when the child is handed over to the commissioning mother.
Single and Unmarried Mothers
- A single mother can avail herself of such leave under the Maternity Benefit Act, 1961, provided she has worked for the required duration.
Women Who Have Experienced Miscarriage or Medical Termination of Pregnancy
- Women who have had a miscarriage or had a medical termination of pregnancy (abortion) are entitled to 6 weeks of leave from the date of termination, upon production of such proof as may be prescribed.
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- If a woman has a stillbirth, she is still entitled to full maternity benefits, according to the stage of pregnancy when the loss was incurred.
Women who undergo tubectomy (Sterilization surgery).
- Women who undergo tubectomy are eligible for 2 weeks of paid leave.

3. Sector-Specific Considerations

Government Employees: Females working in central and state government jobs are given paid maternity leave according to the Service Rules. Others offer extra childcare leave in addition.
Private Sector Employees: Employers are required to follow the Maternity Benefit Act, 1961, but the extension of leave and benefits beyond the statutory 26 weeks will depend on the company policy.
Self-Employed and Gig Workers: Women who worked in freelancing or gig economy roles (Swiggy, Zomato, Ola, Uber, etc), currently do not have the benefit of statutory maternity benefits as per the Maternity Benefit Act, 1961. However, the concept of maternity benefit has been breathed into for the gig workers through various precedents such as Municipal Corporation of Delhi v. Female Workers (2000) and Shikha Jain v. State of UP (2021).

4. Documents Needed to Claim Maternity Benefits

To receive maternity benefits, employees need to submit:

Maternity Leave Application (to be submitted to HR or employer).
PCR test result for COVID-19 and a negative test for ASO (for TBC patients) or high-test readings of ARD (for pregnant women), or a pregnancy test from PCR and blood or urine test.
Salary slips to confirm the continuity of employment and the eligibility for ESI.
Adoption or surrogacy legal documents (if applicable).

In case an employer denies maternity leave, the employee can approach the Labour Commissioner or file a complaint under the Maternity Benefit Act, 1961.

Maternity Leave: Financial Benefits in India

1. Maternity benefit calculation

The maternity benefit amount is calculated at the rate of her daily wage for a prescribed period so that she does not face any financial uncertainty during the leave period.

A. How is Maternity Benefit Calculated?

The benefit is equivalent to 100% of the average daily wage for the duration of the maternity leave.
Formula:
Maternity Benefit = (Sum of salary in last three months ÷ Total working days in last three months) × Number of days of maternity leave
In the calculation of the average daily wage, the salary of the last three months preceding the start of maternity leave is considered.
The right to maternity benefits is still extended to a woman who changes her job while pregnant, provided she has completed the 80-day working gap with her new employer.

B. Timeline for Making Payment and Duty of the Employer

For the first 6 weeks before delivery, the employer shall be required to pay the maternity benefit in advance, upon the notice provided by the pregnant woman.
The other 18 weeks (or 6 weeks for the 3rd child onwards) must be settled within 48 hrs from the date of delivery, upon production of prescribed proof of delivery.
In the event an employer denies payment of maternity wages, the employee has the right to file a complaint with the Labour Commissioner and pursue legal action under the Maternity Benefit Act.

2. Medical Bonus and other allowances:

In addition to maternity leave salary, female employees have access to further medical benefits and allowances to promote prenatal and postnatal health.

A. Maternity Benefit Medical Insurance

The Maternity Benefit Act of 1961 also entitles an employee, if the employer does not give free medical care, to a medical bonus of ₹1000.

B. Other Related Financial Incentives

ESIC Maternity Benefits:
- 100% of the daily average for a total of 26 weeks, subject to the contribution of 70 days in the preceding two contribution periods.
- Individual beneficiaries under the ESIC scheme get free medical treatment for the mother and the newborn.
Leave for Pregnancy-Related Illness:
- One month is an additional paid leave for pregnancy-related illnesses (e.g., hypertension, complications of postpartum, & severe anaemia), upon production of proof in the prescribed form.
New Mother Work-from-Home Allowance:
- Some organizations offer work-from-home options after the maternity leave, with partial or full salary benefits. This is not a legal requirement, but it is a relaxed workplace policy that favours maternity.

Protections in the Workplace During Maternity Leave

During pregnancy and after giving birth, women can become vulnerable to job security, discrimination, and termination. If an expecting mother does remain in service, the Maternity Benefit Act of 1961 offers stringent legal protection against termination, removal from senior positions, and unhealthy working conditions.

1. Safeguard Against Removal or Reduction in Rank

A. Employers cannot fire a Woman for Being Pregnant

Illegal Dismissal: No employer may fire, demote, or discriminate against a woman because of pregnancy or maternity leave.
Compensation for Wrongful Termination: If the employer wrongfully terminates, he/she will have to compensate the woman for the duration of leave until she is declared fit to work, and may also be prosecuted.

B. Job Role or Salary Remains the Same After Maternity Leave

After maternity leave, the woman has an entitlement to return to the same job or an equivalent one.
This gives the employee standing to legally challenge any attempt to reduce salary, deny promotion, or change roles without proper notice.

C. How to File a Complaint for Maternity Discrimination?

File a complaint with the Labour Commissioner.
Then, file a complaint before a Labour Court under the Maternity Benefit Act.
If termination happens due to pregnancy, seek legal assistance.

2. Protecting Our Employees from Health and Safety Risks During Pregnancy

It is a legal requirement for employers to provide a safe and healthy workplace for pregnant women.

A. Restrictions on Work for Pregnant Women

Pregnant women are protected from being required to engage in physically demanding work or night shifts.
Avoid work that involves exposure to toxic chemicals, high noise levels, or extreme temperatures.

B. Rest Area at Place of Work

And companies must ensure that pregnant employees can use proper seating systems, a restroom, and the use of maternity rooms.

C. Special Leave for Complications of Pregnancy

Women who have pregnancy complications can request one month of paid leave for recommended bed rest.

Key Takeaways

Women are entitled to their full salary during maternity leave, which will be calculated based on average daily wages.
The first 8 weeks before childbirth are when maternity benefits must be paid in advance by employers.
Three thousand five hundred rupees in medical bonuses are available if the employer does not provide free medical care.
You can also have extra paid leaves in case of miscarriage, medical termination, or pregnancy-related illness.
It strictly prohibits employers from firing, demoting, or transferring women unfairly during maternity leave and after it.
They must be free of night work and dangerous work assignments.

FAQs (Frequently Asked Questions)

1. Is Maternity Leave Extendable After Its Duration?

No, but it can be requested from the employer.

2. Are part-time or contractual employees entitled to maternity benefits?

Yes. There are precedents supporting them.

3. What are the obligations of the employer regarding the crèche facility?

The crèche must be within the workplace premises or at a nearby location (within 500 meters). The employees must be allowed 4 visits per day to the crèche.

4. Does the Act cover miscarriages or medical terminations?

Yes.

5. Under Indian law, is paternity leave given?

There is no legal provision for paternity leave. However, institutions can include them as a gesture of good faith.

Conclusion

A good knowledge of the Maternity Benefit Act, 1961 and the 2017 Amendment is critical for employees and employers to have a compliant workplace and to get to know their rights and responsibilities. Understanding maternity leave rights empowers working mothers to confidently navigate their rights during and post-maternity leave, while employers can make a culture that preserves these rights, resulting in overall workplace harmony and productivity.

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