Can I get leave if I had a miscarriage, abortion or a tubectomy operation?

If you have had a miscarriage or an abortion then upon showing proof of the same, you will be entitled to leave and payment at the rate of maternity benefit for 6 weeks from the date of the miscarriage or abortion. If you have had a tubectomy operation then you get leave with wages for two weeks from the date of your operation. If you have suffered from an illness due to a miscarriage, abortion or tubectomy operation, you will get an additional month of leave with wages.1

  1. Section 9,9A and 10, The Maternity Benefit Act, 1961.[]

How do I calculate the number of days I have worked for my employer ?

For the purpose of calculating the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared to be paid  holidays during the period of 12 months immediately preceding the date of her expected delivery shall be taken into account.1

In a case where the factory remained closed during the rainy season, those days were added to the days during which she worked for the purpose of calculation.2 Even in a case where the woman had worked for a few half days, they were counted as full days for the purpose of calculating the total number of days she had worked at the establishment.3

  1. Explanation, Section 5(3), The Maternity Benefit Act, 1961.[]
  2. F.M. Kolia and Ors. Vs. Manager, The Tiles and Pottery Works Ltd. and Ors. (1981) 22 GLR 528.[]
  3. Ram Bahadur Thakur (P) Ltd. Vs. Chief Inspector of Plantations (1989) IILLJ 20 Ker.[]

Can fathers get paternity leave in India?

Employees working in the public sector get certain paternity leave benefits. Male employees with less than 2 surviving children get a leave of 15 days to take care of their newborn/ adopted child.1 A man can avail this leave 15 days before delivery, or within 6 months from the date of delivery of the child. The payment during the leave will be equal to the pay last drawn immediately before proceeding on leave.

However, this concept does not exist for private-sector employees, unless specific companies allow for it. The proposed Paternity Benefit Bill, 2017 seeks to protect the paternity rights of working men, but it has not been passed yet.

  1. Section 551 (A), Central Civil Services (Leave) Rules.[]

What is the maternity benefit under the ESI Act(Employees State Insurance Act, 1948)?

The Employees State Insurance Act, 1948( ESI ) is a law meant to financially support workers when they go through medical distress. Under the ESI law, you are eligible to get periodical payments in terms of maternity benefit. However, you have to work for 70 days to be eligible for maternity benefit. The benefits under the ESI law are as follows:

  • You are entitled to paid maternity benefits for a period of up to 26 weeks. Out of this, the benefits of 8 weeks can be availed before delivery.1
  • The maternity benefit under this law is a “Standard Benefit Rate”. It is the total amount of salary/wages received during a contribution period divided by the total number of days you have worked for or Rs. 25 whichever is higher.
  • The type and time period of the benefits you can avail, if you have undergone miscarriage, abortion or are sick owing to your pregnancy, is the same under this law as it is under the Maternity Benefit Act.
  • If a woman dies during delivery or in the period following her delivery then the same rules as under the Maternity Benefit Act apply.
  • Under this Act, you cannot be dismissed, discharged, or punished while you are receiving maternity benefit.2

You are also entitled to a confinement expense of Rs.5000, provided that the confinement occurs at a place where necessary medical facilities under the ESI Scheme are not available.3

  1. Section 56(2), Employees’ State Insurance (Central) Amendment Rules, 2017.[]
  2. Section 73, Employees State Insurance Act, 1948.[]
  3. Section 56A, Employees’ State Insurance (Central) Amendment Rules, 2017.[]

Who sits on a Local Complaints Committee?

The Local Complaints Committee has:

  • A woman Chairperson, a woman in the field of social work committed to the cause of women
  • A woman who is working in the block, taluka, tehsil, ward or municipality.
  • Two members, who are from NGOs/associations/persons committed to the cause of women or are familiar with issues of sexual harassment
    • At least one of them should be a woman
    • At least one of them must have a background of law or legal language
  • An Ex-Officio member, who is an officer dealing with social welfare or women and child development in the district

Is gender-based discrimination the same as sexual harassment?

Sexual harassment is a form of gender-based discrimination. Not all gender-based discrimination at a workplace is sexual harassment. To understand if your case of gender-based discrimination is sexual harassment please look at the explanations above. For more information, please contact a lawyer.