Paternity Leave

This article is written by Soma-Mohanty of KIIT School of Law, Bhubaneswar. In this article, she has mentioned the provision of paternity leave in India. She has stated the procedure and eligibility for applying for paternity leave in India. Provisions and benefits of paternity leave in other countries are also mentioned here.

To maintain a healthy work environment, it is the duty of the employers to look after the needs of their employees. In our countrymen and women are treated equally and their equal involvement in building up a family is required. Thus it becomes mandatory for an employee to take leave from the workplace.

This helps them in the execution of their duty towards the family. When the policies for maternal leave is more emphasized than the paternal leave, the question of gender discrimination arises. Both of the parents should have equal rights to spend time with their newborn baby. Thus, many countries are taking steps to improve the policy of paternity leave.

Table of Contents

Paternity leave in India

• In 1961, the Government of India made provisions for working pregnant women known as the Maternity Benefits Act
• Women under this Act are entitled to various benefits, facilities, and incentives.
• But no provision has been laid down in legislation for paternity benefits.
• But the necessity of laying down of provision for paternity leave to maintain a healthy family was seen.
• Thus in 1999, the Central Government of India made provision of paternity leave for Central Government employee under Central Civil Services (Leave) Rule 551 (A). It provides 15 days of leave as paternity leave.
• It is to be provided to employees who have less than two surviving children.
• This leave can be availed for 15 days either before or within 6 months from the date of delivery of the child.
• These provisions are only made for Government servants.
• There is no provision for employees under private sector in this Act.
• Thus the private sectors are free to incorporate their policy of paternity leave and there have been no rules under this Act which would enforce them to work accordingly.

Paternity leave meaning

It is the mentioned period of time, where a father working as an employee under the sector is granted leave from work to take care of the child and spend time with the newborn child.

Paternity leave rules

• According to Paternity Benefit Bill in 2017 , all the workers working in both unorganized as well as the private sector, have the right to avail paternity leave of fifteen days. And this period can be extended until a period of three months.
• This bill cited the equal parental benefit to be provided to both mothers as well as father.
• According to the 7th Central Pay Commission provision of leave to be granted to a government employee, during the adoption of a child below the age of 1 year.

Paternity leave for central employees

According to the provisions laid down by the Central Government in 1999, under Central Civil Services (Leave) Rule 551 (A) are as follows:

• The period to avail leave is 15 days.
• He should be having less than two surviving children.
• The leave for 15days for parental care should be availed within 6months from the date of birth of the child or before.
• If the leave is not availed according to the provision, then there would be the lapse of time and it would be regarded invalid.
• In case of leave, there would be payment of leave salary which is equal to the pay

Paternity leave sanction proceedings

• In India, all the proceeding regarding the sanctions of paternity leave is to be held before the Metropolitan Magistrate or a Magistrate of the first class
• They have jurisdiction to try any offence under this Act.
• But courts lower to them do not have jurisdiction to proceed with the trial.

Paternity leave rules in India for private companies

• There is no law, which enforces the private sectors to provide the said term of paternity leave as stated by the Government for employees working under Government.
• Thus they are free to frame the time period according to their convenience

(i) 6 weeks of paid

(ii) 6 weeks of unpaid

Paternity leave policy

The leave policy in the following countries are:

Paternity leave policy

• 90 days of paternity leave
• 80% pay of normal salary

• Depending on the earnings of wife, a husband can take 0 to 10 weeks of paternity leave
• Both the parents are paid 80% of their pay

• Fully paid paternity of 8 weeks
• Bot the parents can split 23 weeks according to their convenience

• 3 weeks with 75% of salary paid; or
• 5 weeks with 70% of salary pay

• Both the parents get 3week leave for each
• But in total, they have nine months, so it depends on them how to split the remaining months
• 80% of their salary pay

The leave policy in the following companies:

The policy of paternal leave

• 6 weeks of paid leave
• Applicable in adoption as well as foster care even

• One year of paid parental leave

• Eight weeks of paid leave
• Additional one week for oneself

• Four months of paid leave
• Increments during first year of child’s birth

Paternity leave policy in India

According to THE PATERNITY BENEFIT BILL, 2017

Applicability

• According to sub-clause 1 of clause 1 of the bill stated above, it applies to each and every part of India
• It can be availed by any employee working in a factory, mine or plantation which is under the Government
• It can be availed by any person who is self-employed or working for an unorganized organization.
• Any person working in establishments consisting of less than ten employees also can avail leave.
• It also applies to every establishment or shop which in association with shops and establishment in a State comes under the meaning of any law for the time being in force.

Eligibility

• Every man can avail the benefits only if he has worked under the organization for a period of eighty days out of the twelve months and not less than that.
• It can be availed during the delivery of his wife to whom he is legally married or commissioning mother.
• A person who adopts a child can is also eligible for the benefit.

Exemptions

According to The Paternity Benefit Bill, 2017 rule clause 24

“ If the appropriate Government is satisfied that having regard to an establishment or a class of establishments providing for the grant of benefits which are not less favourable than those provided in this Act, it is necessary so to do, it may, by notification in the Official Gazette, exempt, subject to such conditions and restrictions, if any, as may be specified in the notification, the establishment or class of establishments from the operation of all or any of the provisions of this Act or of any rule made thereunder . ”

Exceptions

• When a man has immigrated to the State of Assam, the maximum period of eighty days to avail the benefits is not applied.
• During the period of leave if the man dies, then the employer is bound to provide the benefit of paternity leave for the stated period
• The employee can also be permitted to work from home if there is mutual consent.

Violations and penalties

• If the organization puts forward the notice of dismissal to a man during the period of his leave then it becomes an unlawful act, and it violates the provisions of the bill passed.
• When a person is deprived of the benefits that he is entitled to under the rules by his employer, then the employer would be penalized with the imprisonment which shall not be less than three months, it can be extended to one year and fine not less than fifty thousand can be imposed and it may exceed to fifty thousand.
• If there is any contravention in the provision laid down in the rules by the employer, then he would be punished with imprisonment which may be more than one year, or fine of at least fifty thousand rupees or both can be imposed
• When the Inspector requires any document in the execution of this Act and the person conceals it and prevent the person to appear for the examination, then he would be punished with imprisonment of one year or it may exceed. He would also be liable to pay the fine that is fifty thousand rupee
• When a person is granted leave under the provision of the rule and works for another establishment during the course of the period, then he would be denied the right to claim the paternity benefit

Complaint

• Any person who is discontented can file a complaint against offense under this rule before any court with competent jurisdiction.
• But after the expiry of one year from the date of commencement of offense, the complaint can not be filed.
• The trial of the offence under this rule can only be tried before the Metropolitan Magistrate or a Magistrate of the first class.

Benefits of universal paid parental leave

Benefits for family

• Maternal leave allows the mother to spend time with their newborn baby. This helps in building up a healthy family.
• Because of the leave, the mother can feed the baby in time. This helps in the growth of the baby.
• Paternal leave allows the father to connect well with their babies.
• Mother also gets a helping hand, thus it reduces disturbance in the family.
• And in paid leave, both the parents are not worried about their financial position and it reduces depression.

Benefits for organization

• When paid parental leave is provided to the employees, the possibility of their turnover decreases and they tend to work in the company longer.
• The more the facility is provided, the more is the outcome from the employees.
• Their efficiency in work increases, which helps in the development of the company.
• Profit is always mutual, the more you provide the more to get back.
• It reduces absenteeism.
• It helps in maintaining a good work environment
• Leaving a newborn baby back home increases the mental pressure of a mother, thus it would reduce her efficiency in work

Benefits for economy

• When there is paid parental leave, the request for public assistance reduces.
• This induces women to get involved in work-force thus contributing to the development of the economy.
• It reduces the percentile of unemployment
• When people are happy, they contribute more to work. Lesser the family pressure more concentrated they are. Thus it helps them to execute their duty efficiently and thus increase in the economy

Capabilities approach

• This model based on the principles to handle the issue of care as well as equality between the sexes was given by Jeremiah Carter and Martha Nussbaum.
• For maintenance of a decent society, eleven central capabilities are required as proposed by Nussbaum
• According to the model paid paternal leave is one of the resources to be provided to people to start their family.

Income and workforce

• When parental leave is paid, it enhances the labor market with the participation of both men and women before and after the birth of the child.
• It increases the rate of GDP as well as increases national productivity.
• It increases the income of the citizens.
• It puts an effect on the rate of birth, thus helping in future development to be contributed by youngsters.

Challenges

Statistical discrimination

• It is predicted that the cost of hiring women who are pregnant would increase which would amount to a decrease in demand for women in the labor market.
• This was the prediction according to the theory of the neoclassical model of labor markets.
• This model predicts the statistical discrimination against hiring a pregnant woman. Despite of the fact that gender discrimination is illegal.
• Thus to curb this inequality some countries have introduced policies that would increase the rate of paternity leave.

Cost

• The universal paid parental leave can be funded in two different ways. One is publicly funded and the other is private;y funded.
• When the fund is transferred directly to workers on leave in the form of unemployment insurance is said to be publicly funded.
• When is transferred by the corporation in the form of employee benefits is said to be privately funded.
• Private funding arises the problem of statistical discrimination and it increases the cost for the smaller business.
• Public funding is very expensive in nature and it is not that cost-effective in nature.

Criticism

• The reservation of part of parental leave as well as family leave for father by some countries.
• This was implemented on the provision of “Father’s quota”.
• According to this if the father does not avail of those leave, then it can not be transferred to the mother.
• The leave would lapse at the end of the period of time.
• As the rate of participation of women in labor force is increasing, the interest of social scientist, as well as policymakers in providing a hand in an equal division of labor, is also increasing.
• This has been criticized by the critics
• Various research has shown that paternity helps in building a stronger bond between father and child.
• It helps in reducing the wage gap faced by the women during her maternity leave.
• Father also plays an equal role like the mother in the development of the child.
• Some critics have raised the fact that companies do not permit the time of paternity to be allocated to mother instead.
• According to some critics this father,s quota affects the right of a mother. It deprives her of the time needed to be spent with the baby.

Effects

Effects on health and development

• Maternity leave provides time for the mother to breastfeed her child, thus it reduces the chances of infection.
• The mortality rate is lower in the countries where there is effective paternal leave provision.
• Parental leave reduces the frequency of leave as well as decreased regular medical check-ups.
• The mortality rate is directly proportional to the leave rate according to the statistics.
• On the basis of Harvard report on the bonding of children with parents, it was seen that the parents who were on paid parental leave had a strong bonding with their children.

Effects on the economy

• The effect of paid paternal leave on the economy was variable with different views.
• According to the report of Norway in 2016, it was seen that
• The retention of employees is higher in paid paternal leave.
• Paid paternal leave enhances the income of the family.
• According to the statistics of Western Europe, the mother who is granted maternal leave comes back to work again and they are more focused. Thus, it helps in the economic development of the organization as well as the country.

Effects on gender equality

• Gender equality is promoted in most of the countries through paternal leave provision.
• In terms of unpaid paternity leave, gender inequality arises because it restricts the father to bond with the baby.
• Thus most of the countries provide paid paternal leave to both the parents to eliminate gender inequality.
• While amending parental policies, more focus is shifted towards the improvement of maternal policy rather than paternal policy.
• The difference between gender roles can be eliminated if both parents contribute equally.
• Thus less provision for paternal leave would cause gender equality.
• The Parental Leave Equality Index model was introduced by Carmen Castro-Gracia helped in the prediction of the amount of contribution by both of the parents in paternal care.
• Through this model of Carmen Castro-Gracia, the policies made would stimulate both the parents to put equal effort into taking care of the child

Length of the leave

• There was a change in the policy of France on the parental policy.
• It was done by Joseph, Solaz, Recotillet, and Pailhe.
• It was more focused on long term economy and short term paternal leave that is to be paid.
• In the previous policy back in 2004, it was seen that the working women were granted two months of paternal leave and they can even avail three years of paternal leave which was unpaid.
• Thus most of them preferred taking two months of leave from work.
• But they were granted six months of paid paternal leave with the introduction of the new policy.
• After the implementation of the policy, it was seen that there was an increased efficiency of women in work.
• Most of them joined back to work after the termination of their leave period.
• There was also a change of policy in paternity leave of women in Denmark by Rasmussen.
• He increased the weeks of leave to be granted.
• And the result was fruitful.
• It was found that long term parental leave increased the wages of the women rather than short term leave.

Parental leave policies in united nations

Maternity leave provision

• Every staff is entitled to a leave period of sixteen weeks.
• Pre-delivery leave is granted only after six weeks and
• It would be granted on the ground of submission of a medical certificate from a qualified practitioner or midwife mentioning the probable date of birth of the baby.
• The staff availing maternity leave would receive full payment for the entire duration of the leave.

Paternity leave provision

• The term of leave granted to every staff is up to four weeks.
• But there is an exception, any staff who is posted internationally then the leave period granted is for eight weeks.
• The staff can avail of leave at his convenience either the whole period or he can divide the period of time.
• The payment to be received during the period is the same.