Nilanjana
A WOMAN CANNOT BE TERMINATED FROM WORK DURING HER PREGNANCY
Nilanjana Ganguly 14 Feb 2020

A WOMAN CANNOT BE TERMINATED FROM WORK DURING HER PREGNANCY

"A WOMAN CANNOT BE TERMINATED FROM WORK WHILE BEING PREGNANT"

 

RIGHTS OF A PREGNANT WOMAN AT WORK :

 

·         Safety at work and restoration- Employers have to keep your job open when you're out for a pregnancy-related absence, and they have to keep your place open at least as long as they would for any workers on maternity leave. Furthermore, you are entitled to any rights of reinstatement enjoyed by other employees when they are out for medical reasons. For example, if your employer offers paid leave to an employee recovering from a heart attack, you deserve the same benefits while away from your job due to pregnancy and related medical issues.

·         Unpaid leave from work benefits- Under FMLA, you are permitted to take 12 weeks of leave each year for the birth and care of your newborn child; you are also permitted to take time off to adopt a foster care child. The PLA allows employers with six or more workers to give at least eight weeks for giving birth or having an adopted child under 18.

Remember that neither law specifically mandates the employer to pay you for time off; instead, they protect your job security and re-establishment rights under the same terms that other workers receive while taking leave. Hence, if you pay other workers when away from work, you qualify for the same benefits.

·         Split Leave as needed- Most pregnant women experience different medical conditions before and after giving birth, and as members of the family transition into their new reality adoptive parents go through various issues. State and federal legislation understand the need for flexibility, so there are provisions that encourage qualified workers to divide the weeks of leave they are entitled to receive.

·         Marriage is NOT Definition- You do not need to be married at both the federal and state levels to take advantage of pregnancy-related leave and benefits. The Massachusetts law, in addition, acknowledges numerous differences in family dynamics, so the laws are gender neutral. Fathers are entitled to the same rights as mothers when they take leave to have a child born or adopted.

·         Safe and secure Pump- Pregnancy discrimination laws require employers to give reasonable break time for a nursing mother to express breast milk for up to one year after birth. The same statutes make it mandatory for employers to provide a place that is sheltered from view, other than a restroom, and relatively private for pumping.

·         Stay with the Job- While many discrimination laws concentrate on requiring leave if required to resolve pregnancy-related medical problems, many women experience the opposite treatment: an employer wants them to take time off to take care of their own and the child's health needs. However, if you are able to perform the routine tasks required by your position, you cannot be forced to take some time off.

·         Abortion and Endurance- Under federal and Massachusetts law, it is illegal for an employer to fire you for the abortion option. In addition, you are entitled to benefit from an abortion-related physical or mental disability to the same degree that your employer offers these benefits to other workers.  Again, employers are not required to provide benefits; they are only required to apply such policies in the same way to all workers.

·         Discrimination is unlawful- If you think you have been discriminated against because of a condition associated with pregnancy, you have rights. You can file a claim of discrimination.

·         Rights on pre-maternity leave- Before the baby is born, it may be necessary to be away from your job and during this time, the law protects your rights. The pre-maternity leave is subject to the same rules as other pregnancy-related absences.

·         Benefits To all employees- If there is one lesson linked to discrimination in pregnancy, it is because a qualified employee is entitled to the same benefits other workers with medical conditions receive. Employers may not be required to pay maternity leave or provide other benefits related to pregnancy, but they must extend appropriate policies to all staff.

 

 

EARNINGS AND LEAVES :

The Maternity Benefit Act provides that in the three months preceding their maternity leave, a woman will be paid maternity benefit at the rate of her average daily salary. The woman also needs to have worked for the employer in the 12 months preceding the date of her expected delivery for at least 80 days.

The Maternity Benefit Act originally provided 12-week maternity benefit, of which up to six weeks before delivery could be claimed. The law was amended in 2017, in order to extend the period to 26 weeks. Up to eight weeks may be claimed from the 26 weeks prior to delivery. However, you don't need to structure your leaves this way — instead you can take the whole 26 weeks of leave after delivery. These are also overall compensation periods and you can demand the value for a lesser amount of time as well.

If the mother has more than two surviving children, then the maternity benefit is only available for 12 weeks. The legislation has also been changed to expand maternity benefits to commissioning and adoptive mothers now entitled to 12 weeks ' leave from the day the child is adopted by the mother.

Women undergoing tubectomy (a medical procedure to stop future pregnancies) also get two weeks ' paid leave after surgery. In the case of abortion or surgical termination of pregnancy, the law allows women to leave for six weeks after the procedure. In the case of a post delivery disease, abortion, termination of pregnancy or tubectomy. A woman may demand a pay leave for a further duration of one month, more than what is allowed.

 

ADDITIONAL BENEFITS :

In addition to the maternity bonus period, the legislation also allows employers to require women employees to work from home if the nature of the work permits that.

In 2017 the law was further amended to make the establishment of creches mandatory for establishments with more than 50 workers. Mom's allowed to visit the creches up to four times a day and in addition to any other breaks available as a matter of course, two breastfeeding breaks per day until the infant reaches the age of 15 months.

 

EMPLOYER'S COMPLIANCE REQUIREMENTS :

·         Review and update maternity leave policies for workers to reflect the benefits extended under the 2017 Amendment Act

·         Update and include relevant references in employment contracts about maternity benefits – representing the current maternity benefit entitlements and responsibilities under the law

·         Developing structures, processes and policies that allow working mothers to work at home

·         Developing the framework for mandatory child care facilities for working mothers

·         Create a non-discriminatory performance management framework that acknowledges the absence of female employees

Taking into account new mothers ' health and safety initiatives, the Act also requires employers to ensure that no woman works immediately after the day of birth or miscarriage during the six weeks that follow. It is also illegal for an employer to fire or refuse a woman employee because of such absence.

In addition, the employer shall not hire a pregnant woman employee to perform any job of an arduous nature or work requiring long standing hours.

 

Where an employer contravenes the provisions or regulations of the Act, the Act provides for penalties either for one year's imprisonment or for a fine that may amount to Rs 5000, or for both.

 

 

EMPLOYER'S CHALLENGES :

One of the main challenges for employers in India who provide maternity benefits is that they have to bear the cost of it on their own. Whereas in most other countries, both the employer and the state government share the cost of maternity benefits.

Under the amended Act, the introduction of full payment of maternity leave salaries and the construction of mandatory care facilities further raises employers ' costs – increasing employers ' preference for recruiting male workers.

India's labor ministry recently proposed a proposal to help employers with the extra financial burden and ensure equal participation of women at work.

While the proposal is yet to be finalized, it seeks to reimburse employers for the wages charged for seven of the additional 14 weeks of maternity leave to female workers in the Rs 15,000 pay class who have been 12-month subscribers to the Employee Provident Fund Organization (EPFO).

 

ALTERNATIVE LAWS IN INDIA WHICH PROVIDE MATERNITY BENEFITS :

In addition to the Maternity Benefit Act, several other laws exist in India which provide for maternity benefits in India.

The Employees ' State Insurance (ESI), a self-financing program for employees ' social security and health insurance, offers maternity benefits for women in low-income jobs. This refers to workers who earn Rs 15,000 or less per month, with the employer contributing 4.75%, and the employee contributing 1.75%..

Instead of the Maternity Benefits Act, those who qualify can receive maternity benefits under the ESI scheme.

Certain regulations that provide maternity benefits include the Working Journalists (Conditions of Service) and the 1955 Miscellaneous Provisions Act, which grants 12 weeks of maternity benefits; and the 1948 Factories Act, which grants 12 weeks of full-time maternity leave.

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