Abstract
Women face several hardships on their way to a successful career. An issue that ties specifically this challenge to their work / workplace is that of maternity benefits. Several women through the years have, each in their own, faced issues regarding lack or inadequacy of maternity leave and/or benefits. Often times, even the legislation is not in their favour. Many jurisdictions do not have provisions for paid leave and benefits. But even with enacted laws, we see that implementation is a major problem. Very often, these provisions do not apply to corporations and private entities, or unorganised sectors.
This research paper while discussing the general ideas and theories, with sometimes research models and studies on maternity leave, also focuses on paternity leave and benefits, as another factor that really affects a woman during childbirth, child care and motherhood. It is sometimes the lack of support from the father, which can often be attributed to the lack of paternity benefits. With both parents on unpaid leave, supporting the family along with increased household expenses and healthcare and medical bills can prove to be a real burden on new parents.
The chosen jurisdictions are India and USA, with the focus being mainly on India and USA as an illustrative comparison to see how a well developed nation tackles one of the major issues that affect one half of their population at the workplace.
Keywords: maternity leave, paternity leave, shared benefits, parental leave, paid leave, women in workplace, employment benefits, gender equality, childcare.
1. Introduction
Parenthood is a vital experience in human life. This is especially important for women given the biological process leading up to childbirth, and convalescence thereafter. It may be necessary to state here the distinction between “maternity leave” and “parental leave”; maternity leave is the period directly before and after childbirth and parental leave being the time given to care for newborns. Often times, maternity leave is alone provided, and sometimes, especially in the private sector, not even that. However the contention is often as to whether the leave or benefits provided are adequate.
ILO Study
In 2014, the International Labour Organization reviewed parental leave policies in 185 countries and territories, and found that all countries except Papua New Guinea have laws mandating some form of parental leave. Another study showed that of 186 countries examined, 96% offered some pay to mothers during leave, but only 81 of those countries offered the same for fathers.
Political Models
Jeremiah Carter and Martha Nussbaum have developed a political model known as the Capabilities Approach, where basic freedoms and opportunities are included in economic assessments of a country’s well-being, in addition to GDP. Nussbaum proposed 11 central capabilities as the minimum requirement for a decent society. In Nussbaum’s model, states should provide the resources and freedoms to ensure people have the opportunity to achieve a minimum threshold of each central capability. Universal, paid parental leave is an example resource states can provide so people have the option of starting a family while also working; for instance, under capacity 10 (control of one’s environment), the state has a responsibility to ensure all people have “the right to seek employment on an equal basis with others.”
Gender Equality in Nordic Countries
Promotion of gender equality has featured on the political agenda of Nordic countries for decades. All Nordic countries have extended the total leave period, but their politics towards father’s quota are different. Norwegians think it normal for fathers to spend time with their children. If we want women to have equality in the workplace, we have to share the responsibilities in the home better. In Sweden 90 days cannot be transferred from one parent to the other—i.e. each parent gets at least 90 days of parental leave, thus the quota applies equally to both parents and is not specific fathers. The case of Denmark is interesting. With more than half the paid leave available to them, Danish fathers take very little of it as Danish men, on average, earn 16.4 percent more than women, which means many families are better off financially if the father continues working while the mother takes most of the leave. However, the dual earner/dual care model seems to be the direction of all the Nordic countries for their parental leave systems.
Parental leave in India
India has had a maternity leave policy on the books since 1961, it recently expanded the law in 2017. Yet, there is increasing concern and speculation that the law may have the unintended consequence of worsening the labour market for women, who already deal with social stigmas often associated with working women.
The lack of paternity benefit is an issue which is now being tackled by the legislature. In 2017, the Paternity Benefits Bill was introduced, which pushes equality in parental benefits. It has not however, been passed yet. It is still anticipated, and if passed, it would guarantee leave up to three months.
2. Lacuna in Law / Statute for Conducting Research
The present topic of maternity leave is of great significance to feminist studies as working women are an important parameter to assess the availability of freedom and access to opportunities that women in a society have at a given time. Maternity leave is a benefit that women ought to by right have as it is a basic need. The position in the industry and the laws of a nation can be examined to also determine the position of women in a society and the extent to which they are entitled to their rights.
Presently, India has made certain legal provisions to provide for maternity benefits to women in the form of Maternity Benefit Act, 2017. From the beginning there have been issues of compliance with the private sector, the unorganised sector, which lead to a major portion of the female workforce, being deprived of these rights. However, the central government has issued clarifications in order to mitigate these issues.
This research is primarily conducted to determine the present position of maternity benefits provisions in the country, and whether the new Bill if passed, is likely to make a positive impact on the situation.
3. Existing Statutory and Judicial Positions
The Maternity Benefit Act, 1961
This regulates the employment of women during the period before and after childbirth. Its key aim is to accord protection to the mother and the child in terms of maintenance, healthcare and to secure their well being and means of livelihood while the mother is not working. This would include and be in the nature of maternity leave, wages, bonus and nursing breaks among others. The Act has gone through several amendments, a significant one being in 2017 when the period of maternity leave was extended to 6 months.
The Maternity Benefit (Amendment) Act, 2017
There had been continual demand over several years to improve the maternity benefits provided to female employees. The primary intention was to ensure that the infants get wholesome nourishment and proper care. The International Labour Organisation in its Convention in 2000 recommended a maternity leave benefit for women of at least 14 weeks.
In 2015, the Central Government considered and implemented a recommendation made by the Sixth Central Pay Commission to relax the period of maternity to 6 months. This was done in line with the guidelines issued by WHO and the Indian Ministry of Health and Family Welfare that a baby needs to be nursed by the mother for a minimum period of 6 months. A few State Governments’ followed this example and relaxed the maternity leave to 6 months. Some of them went further to provide additional child care leave for a period of 730 days so that women employees could look after their children in special cases such as when the infant requires special care, or is suffering from some illness or disorder. Central Government employees were already enjoying the benefit of this child care leave. Several leading private companies voluntarily amended their maternity benefit policy to increase the maternity benefits and also introduced new age benefits such as adoption leaves, surrogacy leaves and paternity leaves. This was done even prior to the amendment in the Act was under consideration.
The Ministry of Labour and Employment, in its 44th, 45th and 46th sessions of the Indian Labour Conference recommended amendments to the Maternity Benefit Act, 1961. The recommendations were in line with those made by the Ministry of Women and Child Development. The Act was thereafter amended and approved by both the houses. It received the Presidential approval on 3rd April, 2017. The changes in the Act were made so as to encourage women to participate in the labour force and to improve their work-life balance. Infants can now be looked after by their mothers during their most important and formative months. This would lead to healthy mothers and healthier children. With the changes being implemented, India now ranks third on the list of countries with most maternity leave i.e., 26 weeks after Canada (50 weeks) and Norway (44 weeks).
Key amendments include:
1. Enhancement of the maternity leave: Paid maternity leave for women employees working in any establishment, with 10 or more employees, has been increased from 12 weeks to 26 weeks. Further, not more than 8 weeks of leave to the women employee shall precede the date of her expected delivery. The enhanced maternity leave will not apply to a mother of two or more children and such women employees will be eligible to only paid maternity leave for 12 weeks (of which not more than 6 weeks shall precede the date of her expected delivery).
2. Surrogacy/Adoption Leave: The Amended Act introduces 12 weeks of maternity leave to commissioning mothers who use a surrogate to have a child as well as to working women adopting a baby below the age of three months.
3. Introduction of Work from Home option: “Work from home” option post 26 weeks of the maternity leave for nursing mothers may be considered by the employer, subject to the job profile and on terms mutually agreed between the employer and the concerned woman employee.
4. Mandatory crèche facility: All establishments having 50 or more employees are mandated to provide a facility, either separately or along with other facilities offered in the office premises. The concerned women employee has to be permitted four visits a day to the crèche during work hours. Such visits shall include the woman employee’s rest interval. This provision alone will come into effect from July 1, 2017.
5. Obligation of the Employer: The employer is required to notify to every woman employee the maternity benefits and the company policy in writing and electronically. Practically, companies can consider to incorporate these provisions in their employee handbooks/HR Manuals.
Criticisms include that it will promote patriarchy as almost whole responsibility of child caring are on the mother’s as per this amendment. Government has not announced any leave for fathers. Many private firms may avoid giving jobs to such women who may enter into pregnancy period as then they have to give them paid maternity leave up to 26 weeks. The law will benefit only a small percentage of women who are working in organised sector ignoring the majority who work in the unorganised sectors like farmers, contract labourers etc.
Case Laws
Air India v. Nergesh Meerza
Facts
The terms and conditions of retirement and termination of services for air hostesses and male pursers were different and discriminatory, under the rules of the Air India Corporation Act (AIC) and Indian Airlines Corporation Act (IAC). This was in spite of performing the same duties and being part of the same cabin crew.
An air hostess under IAC had to retire from service on:
attaining the age of 35 years, or
marriage, if it took place within 4 years of service, or
first pregnancy
The issue examined in this case was whether this amounted to violation of the Constitution – Article 14 (right to equality), Article 15 and 16 (no discrimination on basis of gender).
Judgment
On the first condition of age, the Court held that the age of retirement was to be decided by the management after taking into account various factors such as nature of work, prevailing conditions, etc. However, the court struck down regulation 47 of the IAC, under which the Managing Director (MD) had discretionary powers to grant yearly extension to the air hostesses till the age of 45. This regulation was struck down as such discretionary power could result in similarly placed air hostesses being treated differently by the MD. Therefore, till the management amended this provision, all air hostesses would retire at the age of 45 years and the MD would have to grant yearly extensions to them, as long as they were medically fit.
The second condition was held by the Court to be constitutionally valid. It did not find any issues with the provision which required air hostesses to serve the airline with complete dedication for the first 4 years.
The Court took a very strong stance with regard to the third condition and called it “grossly unethical” and “deep rooted sense of utter selfishness at the cost of all human values”. After serving the organisation for a period of 4 years, terminating the air hostesses’ services due to pregnancy would mean forcing them not to have any children. The decision to continue work after having children is a personal one and should be made by the airhostess and not the airline. Pregnancy is a “natural consequence of marriage” and not a disability. Any discrimination on the grounds of pregnancy is unreasonable and arbitrary. This condition was held to be unconstitutional as it violated Article 14 and was struck down.
With regard to Articles 15(1) and 16(2), the Court held that they prohibit discrimination only and only on the basis of gender. If discrimination based on gender is coupled with other considerations, it is not prohibited.
Mrs. Neera Mathur v. Life Insurance Corporation of India
Facts
The petitioner was an employee of LIC of India. Her employment was terminated by LIC after she returned from maternity leave. The reason given was that she had withheld information about her pregnancy in the questionnaire which was filled out at the time of her appointment.
Judgment
The Supreme Court examined the questionnaire and found that it required all female candidates to provide information about the dates of their menstrual cycle, past pregnancies, etc. The Court held that the questionnaire was an invasion of privacy and directed LIC to reinstate the petitioner and delete the offending columns in its future questionnaires.
F.M. Kolia v. Manager, The Tiles and Pottery Works Ltd.
Facts
The petitioner had applied for maternity leave pay under the Maternity Benefits Act, 1961. The employer contested the claim on the ground that she had worked for only 143 days and was therefore not eligible. The establishment was a seasonal factory which worked for only 8 months in a year. The petitioner was unable to work during the rainy season as the factory was closed during that time. The establishment also remains closed for any other reason specified under the Industrial Disputes Act, 1947.
Judgment
Considering the seasonal nature of the establishment, the days during which the factory remained closed has to be added to the days that the petitioner worked. Keeping this view in mind, the Gujarat High Court held that she has undisputedly completed 160 days as required by the Act. She therefore qualified for the benefit under Section 5(2).
B. Shah v. Presiding Officer, Labour Court, Coimbatore and Ors.
Facts
The respondent is a woman worker working in Mount Stuart Estate belonging to the appellant. She was allowed maternity leave. After her delivery, the appellant paid her maternity benefit amount equivalent to average daily wages for 72 working days for the 12 weeks of maternity leave, excluding 12 Sundays being wage less holidays. Her claim for 84 days, being wages for all seven days of the week for 12 weeks was refused.
Judgment
The Supreme Court applied the beneficial rule of construction in favour of the woman worker. The Court observed that the benefit under the Act along with Article 42 of the Constitution was intended to support the woman worker not only to subsist but to make up her dissipated energy, nurse her child, preserve her energy as a worker and maintain her level of previous efficiency and output. During the maternity period, a woman cannot work for a living and also needs extra income for her medical expenses to preserve her health. The Court therefore held that all Sundays and rest days must be included for the computation of the maternity benefit.
4. International Comparison
United States of America
Maternity leave in the United States is regulated by US labor law. There is a right to a temporary and unpaid period of absence from employment granted to expectant or new mothers during the months immediately before and after childbirth. These policies are generally aimed at supporting the mother’s full recovery from childbirth and facilitating a stronger mother-child bond. The Family and Medical Leave Act of 1993 (FMLA) requires 12 weeks of unpaid leave annually for most mothers of newborn or newly adopted children.
This is one of the lowest levels of leave in the industrialised world. In comparison to other countries, the United States is one of the only countries in the world, and the only OECD member, that has not passed laws requiring business and corporations to offer paid maternity leave to their employees. The FMLA is the only law that addresses family leave. Two other Federal laws, the Pregnancy Discrimination Act and the Patient Protection and Affordable Care Act’s amendment of the Fair Labor Standards Act, provide some additional protection for parents on the birth of a child.
State Legislations
As of 2016, 12 states have enacted no additional laws or programs to support family leave before or after birth. Fourteen states, along with the District of Columbia, have addressed eligibility requirements by lowering the firm-size threshold from 50 or more employees down to as low as 10 employees. Seven other states, in addition to the District of Columbia, have adopted more generous maternity leave lengths that allow longer absences for the purpose of child rearing. Moreover, some states have enacted legislation enhancing the benefits of leave programs.
California, New Jersey, and Rhode Island for instance, operate programs that require private-sector employers to pay their employees who utilise maternity leave at partial replacement rates. New York passed paid family leave legislation, which includes maternity leave, in 2016 — starting off at 8 weeks and 50% of pay in 2018, and reaching 12 weeks and 67% of pay in 2021.
Washington state passed a paid family leave bill in 2007, but it lacked a funding mechanism and has not yet gone into effect. Hawaii, Puerto Rico, and the District of Columbia designate childbirth as a temporary disability thus guaranteeing mothers paid maternity leave through Disability Insurance (TDI) provisions.
Federal Policies
The Department of Defence has regulated the amount of maternity leave a military member can take. Before February 5, 2016 the leave was six weeks long for active duty members or reservists who had previously done twelve months of active duty time. On January 28, 2016, the Defense Secretary, Ashton Carter, increased the paid maternity leave to twelve weeks for all branches. Traditional reservists, however, are given an eighty-four-day excusal, not leave.
In the United States Air Force AFI36-3003, it states that the maternity leave starts after being released from the hospital from giving birth, as also defined for other branches. “Shared benefits” can be created if both parents are active Air Force members. Therefore, a sum of up to twelve weeks can be taken by one parent or distributed amongst the two parents. However, two married active duty members cannot create “shared benefits” in the Army, according to the Army Directive 2016-09 (Maternity Leave Policy).
Paternity Leave
California is the first state to offer paid paternity leave (six weeks, partial payment). New Jersey, Rhode Island, and New York have since passed laws for paid family leave. In the other states, paternity pay weeks are not offered (therefore neither paternity paid leave weeks), but fathers have access to unpaid paternity leave to care for their newborns. Often, fathers will take sick days or vacation time when they have newborns. There is also a growing number of fathers that go unpaid. Some employers are required by law to allow 12 weeks of unpaid family leave after the birth or adoption of a child. This law is under the Family Medical Leave Act. Fathers who have access to paid paternity leave give mothers the opportunity to engage in paid work, with a positive effect on female labor force participation and wages.
The United States military branches also show a minimal paternity leave. Although some branches give more time after the birth to take the leave, all branches give to ten days. This type of leave is only applicable to those who are married.
Longer paternity leave increases the father’s engagement with a child, which leads to the child’s improved cognitive and mental health outcomes and fewer behaviour problems.
5. Conclusion and Suggestions
Women have faced discrimination on innumerable grounds for the longest time, and this pattern continues. For working women, one of the major hurdles in their career is the lack of adequate maternity benefits. A woman should not have to choose between her career and her family, and it is unfortunate that in this day and time, we continue to face an unavailability of adequate provisions for something so vital to a woman’s life as motherhood. This issue has been exacerbated by not making adequate provisions for men to care for their newborns.
Parental leave sees more discrimination in gender than most other workplace benefits as childcare is so often associated with childbirth, an act only a woman can perform. Lack of paternity benefits puts more pressure on a woman and her career and often affects the household.
India’s Maternity Benefit Act has been a boon to women employees in the organised sector. Various judgments of the Supreme Court and High Courts have aided in protecting and empowering women, by justly implementing the provisions of the Act. The enactment of the Maternity Amendment Act has made this legislation one of the most progressive enactments in the world in terms of maternity benefits.
Several maternity benefits provisions and legislations in Nordic countries have been discussed world over as an exemplary method and system. While they certainly inspire other jurisdictions to follow in their path, several conditions unique to these nations also make this system possible. To implement these laws as they are in other jurisdictions is often affected by local politics, societal scenarios, and fiscal deficits.
The USA is infamous for its low levels of parental leave and benefits, also since it does not make for specific provisions to implement any regulations for corporations. This puts a massive fraction of the workforce out of the ambit of these protections and benefits. Several studies have proven the benefits of parental leave, even affecting biology. A study showed that mothers who are not engaged in employment may be more able to participate in consistent breast-feeding; babies who are breastfed may be less likely to get a variety of infections and are also at a lower risk for asthma, obesity, and infant death syndrome.
Criticisms would chiefly call for longer leave and better benefits, so that parenthood does not become more of a burden than a joy to new parents. For parents with subsequent children and adopted children, the benefits and leave are different, which is not always just.
There is a major lacuna in the provisions for the unorganised sector. In the Indian scenario, the central government has recently come up with a clarification to remove ambiguities and bring within the ambit of these laws a larger segment of the workforce. However better benefits and clear provisions to benefit these women must be established to remove further and future ambiguities
The Paternity Benefits Bill is still being reviewed and its enactment is likely to lead to greater benefits for the household. If this Bill becomes an Act soon, parents may be able to better share the responsibilities of childcare. The delay in enactment poses to be an issue to new parents and the legislation must be enacted at the earliest.
It is important to believe that parenthood includes responsibilities attributed to both parents. By sharing them alone, the careers of a majority of women can be far less affected. A major hurdle is the idea of bearing the responsibility singlehandedly. If fathers can legally be benefitted by their employers, childcare may be better managed and a birth in the family would be a joy that both parents can enjoy, as they equally deserve to.