Female Maternity Leave Allowance (FMLA) is a central right provided by the government to female
. A female employee applying for FMLA to the employer cannot be denied her right if an application for it, is placed in a well-framed and in a legally complied format.
It is necessary to notify the employer at least 30 days before taking such leave, which will provide him sufficient time to fill the vacancy with a temporary placement.
If after all conditions and situations placed, the company still denies permitting maternity leave to the female employee, then seeking the help of a legal consultant is the only required option left she is left with.
Who is eligible to claim Maternity Leave?
The Maternity Benefit Act (Amendment Act ),2017 limits an employer to deny maternity leave to a female employee if
– She has worked for more than 80 days for the employer or in the company in the past 12 months
– Paid Maternity leave in India for working women (entitled to 26 weeks leave)
– Prenatal leave (entitled to 8 weeks leave)
– She already has two or more children* (entitled to 12 weeks of leave)
– She has adopted a child of age below 3 months (entitled to 12 months leave)
– She is a surrogate or commissioning mother (entitled to a leave of 12 weeks).
– She had experienced miscarriage (entitled to a leave of 6 weeks on a well-approved doctor prescription )
– She is experiencing ill health caused due to pregnancy, delivery or premature delivery of a child (entitled for a leave of 1 month).
*Prenatal leave, in this case, will be six weeks.
A new proviso is also inserted in the Act, under which women availing maternity leave will be allowed work from home benefits. As per this, an employer may allow nursing mothers to work from home if the nature of work assigned to them so permits, on mutually agreed conditions between the employer and woman employee. Furthermore, the Government of India issued an advisory to provide work from home benefits to nursing mothers where the nature of assigned allows for it for at least one year from the date of childbirth.
Here in this article, we listed some common suggestions and legal remedies available to female employees in case the company denies them their right to maternity leave.
- Educate employer: Ensure that all information about legal provisions related to the allowance of maternity leave and the consequences for non-fulfilling of such provisions is provided to the employer as stated in the Maternity Benefit Act (Amendment) Act, 2017 ( https://labour.gov.in/sites/default/files/Maternity%20Benefit%20Amendment%20Act%2C2017%20.pdf ).
- Complain to Labour Commissioner: It’s better to reach the labor department of your district and report the situation to the labor commissioner. Having the utmost authority to guide, the labor commissioner will himself contact the employer/company or will issue a statement to him related to the concern. Most of the employers in this situation repent for denying maternity leave.
- Take help of a Legal Professional: In case the employer still denies for maternity leave, with a supportive statement of labor commissioner or labor department, an employee can even take the assistance of a lawyer to send a legal notice or to drag the employer to the court.
- File a suit in labor court: It is suggested to go for the assistance of an employment lawyer who deals with matters related to labor grievances with employers. Any female employee with a due following of provisions of the maternity benefit act can file a suit against the employer in the labor court with the help of an employment lawyer.
Maternity benefit is allowed to all female employees working in factories, mines, shops, and all other types of establishments that employ 10 or more employees. No employer can deny maternity leave but if still, the situation persists, the above-stated remedies can be applied.
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