Abstract:
Parental leave policies play a pivotal role in supporting work-life balance and gender equality worldwide. The Maternity Benefit Act, 1961 and its later changes govern maternity benefits, which are the subject of this paper’s analysis of India’s legal framework for parental leave. It also looks into the Central Civil Services Rules’ paternity leave policies and the 2018 Paternity Benefit Bill. Comparisons are drawn with parental leave policies in Australia, Brazil, Canada, Japan, Italy, and the United Kingdom, highlighting eligibility criteria, duration, compensation structures, and employer obligations. Disparities emerge, particularly in the scope and inclusivity of paternity and adoption leave benefits. Key findings underscore gaps in India’s parental leave policies, including limited duration and varying benefits between public and private sectors. Legislative changes to guarantee gender-neutral parental leave, employee rights education programs, and provisions for financial support during unpaid leave periods are among the suggestions made to close these discrepancies. This study contributes to understanding global practices in parental leave, emphasizing the need for comprehensive reforms in India to support diverse family dynamics and enhance workplace equity.
Keywords:
Parental leave, Maternity, Paternity, laws and policies.
Introduction:
Parental leave is the leave provided for the employees for taking care of the new born child or taking care of the ill member in a family, this includes maternity, paternity, adoption leave, this can be paid or unpaid, the paid off is such the parental leave can be given with the benefit of paying remuneration to the employee by the employer whereas the unpaid leave would be the leave can be granted without giving any remuneration to the employee by the employer, parental leave has been granted legal status in several countries by enacting laws and rules, International Labour Organisation governed by UNO on 2014 has analysed the parental leave policies over 185 countries and stated every countries mandating laws for parental leave except Papua New Guinea and also many other research stated that from 186 countries 96% members offer paid-off for maternity whereas only 44% offering the same for the paternity leave, there is need for parental leave for reasons such as to maintain work-life balance, care for children, physical and emotional support between partners during growth of child, gender equality etc., this paper would examine the legal status over the parental leave benefits concerning legislation. parental leave should allow parents to concentrate on family matters for a certain period, to keep their job and to return to their paid employment afterwards without problem.
Research methodology:
This paper is of descriptive nature and the research is completely based on secondary sources for the examining and analysis of legal status of parental leave, comparison with foreign laws and policies. Secondary sources such as journals, research papers and articles are used for this research.
Review of Literature:
Maternity Leave in India – Past Present and Future by Sanchari Ghosh explains about the constitutional evolution of maternity benefits in India, and further highlighting the possible roadblocks in its efficient implementation it also emphasis role of fathers and require paternity leave this paper also recommend the need for enforcement of paternity benefit act take this paper into reference.
Parental Leave: From perception to first-hand experience by Diane- Gabrielle Tremblay and Emille Genin has carried research on paid parental leave and delayed implementation of a new parental leave policy in Quebec Canada and also it assessed how the system was perceived in the workplace our paper take reference of this while examining foreign policies.
Research on Parental Leave Policies and Children’s Development Implication for Policy Makers and Service Providers by Donna S. Lero has examined the parental leave policies as factors that parent-child interaction and young children’s development and identified potentially helpful complementary policy changes and service approaches our research has also relied on the factors that affect the practical relationships and other difficulties taken this paper into reference.
Constitutional provision on parental leave:
Article 42 of Directive principles of state policy under Indian constitution 1950 states “the state shall make provision for securing just and humane conditions of work and for maternity relief” the reason behind this is previously the companies or the industries had provided lower pay for the labour associated and doesn’t provide any safeguards for working person especially women while committed into a work had not provided with maternity leave if so they were fired from work hence they are forced to enter into the work during the maternity phase this causes rise in infant mortality rate to curb such activity the constitution included the provision provided under Article 42 of DPSP which imposes duty on the central as well as the state governments to enact laws regarding the problem.
Specification of legislation supporting parental leave:
Maternity benefits Act 1961: The very first primary act enacted in india providing maternity benefit act is Maternity Benefits Act 1961 later it is amended into Indian maternity benefits (amendment) act 2017 the ultimate aim of the act is to provide medical, physical and psychological support as well
Eligibility: It applies to every establishment being a factory, mine or plantation for both public and private institution containing not less than ten employees
The women claiming maternity benefit in a company or other establishment should be actually worked in there for not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.
Right of maternity leave: The act has given a right to women entitled to claim maternity benefit of 26 weeks paid maternity leave up to 2 children and it lowers to 12 weeks in case of 3rd child, Adoptive mothers can claim 12 weeks if the adopted children are below three months old, Surrogate mothers can also claim benefit of 12 weeks of maternity leave, In case of child born out of tubectomy a women can claim maternity leave upto 2 weeks, If the mother has premature delivery, then she is entitled to get additional leave of 1 month
Those women whom she is entitled to claim the maternity benefit can also claim the average daily wages i.e. average of the women’s wages payable for a period of three calendar months before date of her expected delivery.
The women eligible for above said condition can’t be discriminated for the reason of pregnancy and it should not affect her in matters such as promotions, increments and others
The women are also entitled to claim work from home facility after completion of her maternity leave period
Creche facility: The company or establishment consists of 50 or more members should consist of creche room facility in which the mother shall visit 4 times a day for caring of her child.
Central civil services rule:
As said in the civil servants leave rule 43-A. Paternity Leave which has given a first recognition on paternity leave stating that the male government servant including apprentice can claim leave of 15 days during the confinement of his childbirth before or after the date of delivery
He is entitled to claim of leave salary equivalent to the pay drawn immediately before proceeding on leave and not to be debited against the leave account.
Paternity leave for child adoption rule 43-AA. A male government servant including apprentice with less than 2 surviving children can claim leave of 15 days for adoption of a child in foster care followed by a valid adoption he is also entitled to claim the salary equivalent to salary drawn before the leave , child for this rule will include a child taken as ward by the government servant under Guardians and Wards Act, 1890 if the ward lives with the Government servant and is treated as a member of the family and such government servant has through a special will, conferred upon that ward the same statues equivalent to natural born child.
Although Indian government employees are allowed to take paternity leave, private sector companies are not required by law to do the same. Therefore, each company is free to decide how much paternity leave benefits to offer.
Laws and policies in foreign countries:
Australia
Parental leave is provided in Australia in the following situations: the employee gives birth, the employee’s spouse or de facto partner gives birth, or the employee adopts a child under the age of sixteen. Employees need to be engaged in work with employer for at least 12 months or else ineligible for parental leave for the first time.
In Australia, parental leave may be taken for up to 12 months without pay for employees. In addition, they are entitled to ask for an extra year of unpaid leave. A worker can take 2 days pre-adoption leave in the event that they adopt a child. This makes it possible for them to show up for any relevant exams or interviews. Additionally, Dad and Partner Pay—which also includes same-sex partners—is available in Australia.
Brazil
Maternity benefits are available to all Brazilian female employees. The Brazilian social security organization, INSS, provides subsidies for the maternity benefit. This benefit is available to the employee for 120 days, starting up to 28 days prior to the employee’s due date of birth. The paid leave benefit for paternity leave is five days for male employees. It should be noted that employers bear the responsibility of providing this upfront benefit. Subsequently, they can deduct the appropriate amount from the social security contributions that are due to the INSS. The same 120 days are granted to female employees and five days to male employees who adopt a kid. In Brazil, payments for paternity leave may be up to 20 days, and benefits for maternity leave may be increased to 180 days under specific conditions. To be eligible for an extension, a person must meet specific criteria set forth by the government program.
Canada
The rights to parental leave in Canada differ from province to province. Maternity leave, which includes pregnancy leave, is often granted to expectant employees for a maximum of 17, 18, or 19 months, depending on the province. Although this leave is unpaid, the employer must permit it. Birth dads can also take up to five weeks of unpaid paternity leave in the province of Quebec.
In addition, at the birth of a child or when the kid enters their care for the first time, new parents and adoptive parents in the majority of Canadian jurisdictions are entitled to unpaid parental leave, which can last anywhere from 59 to 63 weeks.
Canada employers should be aware that extra benefits are frequently expected. Many businesses will have a plan to offer a “top up” of benefits for an additional percentage of the regular income for the reason that government’s Employment Insurance payments frequently only cover a required amount of the employee’s regular salary.
Japan
In Japan, pregnant women are allowed to take a maternity leave that ends within six weeks. If they plan to have two or more children, they can take their maternity leave during the fourteen-week period. The employee is not allowed to return to work until eight weeks have passed after the date of the birth. However, the worker may desire to return to work after the six-week mark has elapsed since the day of delivery. After that, the employer may let her carry out tasks that a physician has cleared.
Italy
Italian labor laws require female employees to take a two-month leave of absence before and three-month leave following childbirth. Instead, this required five-month maternity leave can be moved to be used in full following delivering provided a medical certificate is presented.
Employees in Italy can receive an allowance from the National Social Security Body during maternity leave, which is equivalent to 80% of their pay. Female employees may return to work by giving 10 days notice to the employer at anytime in the event of a therapeutic or voluntary pregnancy termination 180 days after the pregnancy began, or in the event that the child dies at birth. Refunds are contingent upon particular medical clearance.
In certain situations, Italy also requires paternity leave. The father is entitled to the full or remaining length of maternity leave in the event that the mother is unable to use it because of illness, death, or having sole custody, as of January 2020, dads in Italy are required to take 10 days of paid paternity leave within five months of the child’s birth, and they are also eligible to take an additional day during the same period in lieu of the mother’s leave.
Parents in Italy are allowed to take a leave of absence during a child’s first 12 years of life. This optional parental leave can be taken for a maximum of 6 months by both parents, or for a maximum of ten months by one parent alone. When their child is sick, parents have the right to take time off work throughout the first eight years of the child’s life.
When the child is brought into the family for the first three months, Italian employees are eligible to take a three-month maternity or paternity leave.
United Kingdom
Pregnant workers and new moms in the UK are entitled to a maximum 52-week maternity leave term. During the maternity leave, the employee’s regular terms and conditions of work will remain in effect; however, statutory maternity pay will take the place of their wage. For the first six weeks of leave, this payment is equivalent to 90% of basic salary; for the next 33 weeks, it is equivalent to £151.20 per week or 90% of average weekly earnings, if less. In addition, a lot of companies provide company maternity pay, which is an increased wage for part or all of the maternity leave duration.
Workers in the UK who have worked for 26 weeks straight are eligible for paternity leave. Fathers who meet the eligibility requirements can take a leave of absence lasting one or two weeks. The leave is paid for at 90% of the average weekly earnings, if less, or £151.20 per week. Similar to maternity leave, paternity compensation is often chosen by employers at a higher rate.
One member of the adoptive couple may take up to 52 weeks of parental leave for adoption, adoptive parents have the opportunity to participate in the shared parental leave program.
Problems associated with parental policy in india and beneficial activities in foreign nations:
- India is moving into equalized work culture without gender disparity and weightage of work sharing hence the work culture and immunity provided should be common for both men and women to attain equality in work culture.
- The families are drastically evolved among young couples in india, they tend to share their household chores among each other and also involved in balance approach in taking care of their children hence the act and policies has a disparity in such approach.
- There is a law enacted for Maternity Benefit in the year of 1961 itself for working women but no deliberate rules had been established for the men who has equal participation in child growth.
- The Central Civil Servants rules is offering 15 days paternity leave concerning over only the civil servants whereas it doesn’t involve any provisions for public servants
- Medical practitioners require, atleast the newborn child requires minimum of 28 days due care and protection but the paternity policy stick with only 15 days would not be sufficient.
- The paternity policy is established in private sector companies and it differs from one over the other it cannot be a standardized one.
- There is no awareness among the persons associated with less paying jobs that when a company associated with minimum of 10 persons should offer maternity leave to their employees
- Australia has also covered same sex partners but india has not evolved such
- The Brazilian social security organization INSS is a governmental organization which offers a financial support for maternity benefit whereas india lacks such.
- Canada has offering maximum of 63 weeks unpaid parental leave for the employee with guaranteed job offering after completion of their leave.
- Japan government has offering health insurance scheme during their maternity where their 2/3rd of her base pay is invested there.
- Italian government has offering same benefits for both the men and the women during the child birth they also additionally offer 6 months during a child first 12 years of age further parents have the right to take time off work throughout first 8 years of the child birth
- The UK government has given a maximum of 52 weeks parental leave to the employees and well-defined sharing of pay.
Recommendation:
- Passing the Paternity Benefit Bill into law to avoid inappropriate policy in different companies’ policies for paternity leave
- The law should also include the eligibility, prescribe number of leave days, general rule applicable for both public and private sector companies
- Separate commissions should be appointed for the proper implementation of the benefit, to be reached to the employees and also acts as a monitory body
- Setup awareness campaign in every registered company and other industrial sectors, to create knowledge to employees about their rights and benefits
- To recognize the same sex couple and enact separate laws for their benefit in case of adoption, also prescribe the rules regarding their leave benefits
- The governmental organization shall contribute funds to the parental leave in case of unpaid leave offered in any companies and provide financial assistance
- The maternity leave and paternity leave shall extend up to 12 months where the child would become little stable
- The company policies must include schemes such as medical insurance for pregnancy and child care, also provide medical assistance to the employees
- The company should be provided with the job security to the employees without affecting their promotion, increments and other emoluments
- Separate investigatory body should be appointed to avoid the avoidance of recruitment in case of pregnancy, terminating the person from employment seeking parental leave and etc.
Conclusion:
This paper discusses about the definition of parental leave and its classification and explains about the laws in place and the specification it is provided, the paper also had a research on the policies that are carried out in different nation in maintenance of parental leave from this a comparison on this had made out, and various problems arising out from the laws in force and other beneficial schemes that took place in other nations that lacks in India is pointed out here and for such problems various recommendation has been prescribed in detail.
KRISHNA KANTH R S
Intern june 2024
Government Law College Vellore.