Theme: Workplace Welfare

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.(( 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.(( Explanation, Section 5(3), The Maternity Benefit Act, 1961.))

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.(( F.M. Kolia and Ors. Vs. Manager, The Tiles and Pottery Works Ltd. and Ors. (1981) 22 GLR 528.)) 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.(( 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.(( Section 551 (A), Central Civil Services (Leave) Rules.)) 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.

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.(( Section 56(2), Employees’ State Insurance (Central) Amendment Rules, 2017.))
  • 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.(( Section 73, Employees State Insurance Act, 1948.))

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.(( 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.

Can a member of the Internal Complaints Committee, which has been constituted to deal with sexual harassment at the workplace, be fired?

A member of the Internal Complaints Committee has to be removed from office if they:

  • Give any information about a sexual harassment case to the public
  • Have been convicted of a crime or are currently the subject of an inquiry themselves
  • Are found guilty in a disciplinary proceeding, or have disciplinary proceedings pending against them
  • Have abused their position in any way

After a member is fired from the committee, the employer will have to find a new member to replace them.

What sort of offices are responsible for preventing sexual harassment?

If you are responsible for the management, supervision, and control of the workplace then you will be understood as an employer under the law. This means you must work to prevent sexual harassment. Offices and employers can include(( Section 2(g), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)):

  • Government offices, where an employer is usually the head of department. Sometimes, the government may decide that another person will be considered as the ’employer.’
  • Private offices, where an employer is any person who manages and is in charge of the office. This includes the board or committee making policies and putting them in place.
  • Any office, where a person is an employer according to their contract.

In a home, where the person or the house which hires a domestic worker. The type of the work and the number of workers do not matter.

What to do if the organisation has not given the Internal complaints committee’s report on time and has delayed the delivery of the report?

It is the employer’s responsibility to ensure the timely submission of reports by ICC which are then made available to the concerned parties.(( Section 19, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) If the employer fails to provide the report on time, he/she can be fined for 50,000 Rs.(( Section 21, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)). In case there is a delay in the delivery of the investigation report, a complaint can be taken to the Appellate authority prescribed under the service rules of your establishment. In case, there are no service rules, an appeal can be taken to the authority as mentioned in the internal policy of your establishment.  If you are dissatisfied with the order of this Authority, you can take the matter to the court with the help of a lawyer.

What can you do regarding a biased investigation by the Internal Complaints Committee?

Workplaces with more than 10 employees are required to set up an Internal Complaints Committee that specifically handles cases of sexual harassment. If you face sexual harassment at your workplace, you can submit a written complaint to the Committee.(( Section 9, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))

The composition of the Committee and the distribution of members is meant to ensure that the investigation is not biased. The members of the Committee(( Section 4(2), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) must include:

  •  A presiding officer, who is a woman employed at a senior level. If the presiding officer acts in violation of her powers, she will be removed and a new nomination will take place.
  •  At least two employees, preferably those who are committed to the cause of women or who have had experience in social work or have legal knowledge.
  •  One member from a non-government organisation or association committed to the cause of women, or a person familiar with sexual harassment issues. This member will be paid.

At least half of the members of the Committee must be women.

If you feel that the existing Committee is biased, you can request the reconstitution of the Committee on the ground of bias. In this case, you need to establish that there is a real likelihood of bias. Mere apprehension would be insufficient for requesting the reconstitution of the Committee.(( Somaya Gupta v Jawaharlal Nehru University, https://indiankanoon.org/doc/36129445/))

During the investigation, the Committee has to follow certain regulations while making inquiries. If you have filed a complaint accusing another employee, both you and the accused have to be given an opportunity of being heard during the inquiry by the Committee. A copy of the Committee’s findings has to be made available to you and the person you have accused. This enables you to make a representation against the findings before the Committee.(( Section 11, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))

Within 10 days after completing the inquiry, the Committee has to provide a report of its findings to the employer, and the report will be made available to both the complainant and the accused. The Committee may decide that your sexual harassment allegation against the accused has not been proved.(( Section 13, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) If you are not satisfied with this decision due to any reason including bias, you can appeal to the court.(( Section 18, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))

If you are being sexually harassed at work and you don’t want to approach the Committee fearing bias etc., you also have an option to directly file a criminal complaint with the police. 

376 of crpc

We understand your question to mean, ‘What does the law say about intercourse with employees in a fiduciary relationship?’ Based on this understanding, we can tell you that Section 376C of the Indian Penal Code speaks of sexual intercourse by a person in authority.

The law provides punishment for any person who abuses his position or fiduciary relationship (relationship of trust) to convince or seduce any woman to have sexual intercourse with him. The woman could be in his custody, under his charge or present in the premises. Please note that here, sexual intercourse does not refer to rape, which is dealt with as a separate offence under Section 375 of the Indian Penal Code.

The person who persuades the woman to have sexual intercourse could be:

  1. a) in a position of authority or in a fiduciary relationship; or 
  2. b) a public servant; or 
  3. c) superintendent or manager of a jail, remand home, other place of custody, or a women’s or children’s institution; or 
  4. d) on the management or staff of a hospital. 

In these cases, the person in authority can be punished with imprisonment for five to ten years, along with a fine.

Is whistling to a woman sexual harassment?

Yes, whistling at a woman on the street is a crime of sexual harassment. The punishment for making sexual gestures is jail time between minimum one year and maximum five years along with a fine.(( Section 354, Indian Penal Code, 1860.))

Can I get leaves from my workplace 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(( Sections 9, 9A and 10, The Maternity Benefit Act, 1961.)).

Workplace Guide for Persons with Disabilities

How can the guide help you?

The Nyaaya Guide for Persons with Disabilities at the Workplace helps persons with disabilities (PwDs) understand their employment rights and associated remedies.

What are the laws being discussed in the guide?

This guide discusses the rights of persons with disabilities outlined in the Constitution of India, 1950, The Rights of Persons with Disabilities Act, 2016 (PwD Act), The Rights of Persons with Disabilities Rules, 2017, and the Income Tax Act, 1961.

Who is a ‘person with disability’?

A person with disability is a person with long-term physical, mental, intellectual or sensory impairment, which restricts their full and effective participation in society equally with others.

Who is a person with “benchmark” disability?

A person with benchmark disability is someone who has at least 40% of a specified disability.

Specified types of disabilities include:

1.   Physical Disability

  • Locomotor Disability: Inability to perform activities associated with movement. People with locomotor disability include those with cerebral palsy, dwarfism, muscular dystrophy, acid attack victims, etc.
  • Visual Impairment: A condition of blindness or low vision.
  • Hearing Impairment: Deafness or loss of hearing.
  • Speech and language disability: Permanent disability affecting speech and language.

2. Intellectual Disability

Significant limitations in intellectual functioning (reasoning, learning, problem solving) and adaptive behaviour (everyday social and practical skills) including specific learning disabilities and autism spectrum disorder.

3. Mental Illness

Substantial disorder of thinking, mood, perception, orientation or memory that severely impairs judgement, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life. This does not include mental retardation.

4. Disability caused due to

  • Chronic neurological conditions: Multiple sclerosis, Parkinson’s disease
  • Blood disorders: Haemophilia, Thalassemia, Sickle cell disease Multiple Disabilities: More than one of the above specified disabilities.
  • Any other type of disability specified by the Central Government.

Disability Certificate

Why should you apply for a Disability Certificate?

A Disability Certificate gives you the right to apply for facilities, concessions and benefits under schemes put in place by the Government, and Government-funded

NGOs for persons with disabilities. The disability certificate is valid throughout India.

How can you apply for a Disability Certificate?

The Government specifies qualified and experienced people as certifying authorities competent to issue the Disability Certificate. Anyone with a specified disability can apply (using Form-IV) for a certificate of disability to:

  • a medical authority or other competent authority in the district where the applicant lives (according to the proof of residence in their application); or
  • the concerned medical authority in a government hospital where they are undergoing or have undergone treatment for their disability.

A legal guardian or concerned registered organisation can apply on behalf of a minor or a person unfit or unable to make the application themself.

For disability certificate form download, refer “Form-IV” in References here.

Find the nearest medical authority here.

What are the documents required with the application?

Attach the following with the application:

  • proof of residence;
  • two recent passport size photographs; and
  • Aadhaar number or Aadhaar enrollment number, if any.

Decision of the authority

The concerned authority will verify the information and assess the disability. If the authority thinks the applicant is a person with disability, they will issue a certificate of disability within a month. This could be a permanent certificate of disability, or a certificate with a validity period if the disability might vary over time. For example, if an employee has a hand injury which would take one year to heal, the authority could issue a temporary certificate of disability valid for one year.

If the authority finds the applicant ineligible, they will communicate this to them in writing within one month.

To check disability certificate or UDID card status, you can track it here by entering your enrolment/UDID card number/Request Number/Mobile Number/Aadhar number.

For disability certificate download, log in here using your enrolment number/UDID card number and date of birth.

Unique Disability ID (UDID)

What is a Unique Disability ID (UDID)?

You can now apply for a Unique Disability ID (UDID) in the form of the

Swavlamban Card. A Swavalamban/UDID Card contains all necessary details and is a single document for identification and verification of a person with disability for getting various benefits.

You can use the UDID card online portal to:

  • Apply for Disability Certificate and UDID Card online
  • UDID Card renewal
  • Apply for a lost UDID Card
  • Download e-Disability Card and e-UDID Card

How to apply for UDID Card online if you do not have a Disability Certificate

Fill an online application and attach scanned copies of the required documents. Choose the option “No” to “Have Disability Certificate?” in the Disability Details Tab while filling up the application, and submit the application.

How to apply for UDID Card online if you have a Disability Certificate

If your  data has been migrated to the UDID Portal, click “Already having Disability Certificate” and provide Beneficiary ID/State ID or Aadhaar Number (if linked), other details, fill up the application and submit.

If your data has not been migrated to the UDID Portal, fill up a fresh application and select the “Yes” option to the question “Have Disability Certificate?” In the Disability Details Tab, fill up other details and submit the application.

For UDID card download, log in here using your enrolment number/UDID number and date of birth.

Rights of PWD

 

What are the Employment-related Rights for a

Person with Disability  under the Constitution?

Right to Equal Opportunity

All citizens must have an equal opportunity in matters related to employment or appointment to Government positions. The Government can also make provisions for reserving appointments or posts for any backward class of citizens who are not adequately represented in Government services.

Government’s responsibility

The Government should try to make effective provisions and provide public assistance for persons with disabilities to secure employment.

What are the Employment-related Rights under the PwD Act?

Right to Vocational Training and Self Employment

Under Government schemes and programmes, persons with disabilities can get loans at concessional rates to support their employment, especially vocational training and self employment.

These schemes try to:

  • Include persons with disabilities in all mainstream formal and non-formal vocational and skill training schemes and programmes;
  • Ensure that a person with disability has adequate support and facilities to avail specific training;
  • Provide exclusive skill training programmes for persons with disabilities with active links with the market, for those with developmental, intellectual, multiple disabilities and autism;
  • Market products made by persons with disabilities; and
  • Maintain data on the progress made in the skill training and self employment of persons with disabilities.

Right against Discrimination

Government establishments should not discriminate against persons with disabilities in employment. However, depending on the type of work, the Government might exempt an establishment from this requirement. For employees with disability, Government establishments:

 

SHOULD  SHOULD NOT
Make reasonable adjustments and provide an appropriate barrier-free environment which is helpful for persons with disabilities. This involves designing physical spaces and information systems in such a way that persons with disabilities can easily access them. Deny promotion only on the ground of disability, or sack an employee who acquires a disability during their service.

 

If an employee is not suitable for the post after acquiring a disability, the employer can shift them to some other post with the same pay scale and service benefits. If it is not possible to adjust the employee against any post, the employer can keep them on an additional post until a suitable post is available, or till the age of retirement (whichever is earlier).

The Bombay High Court ordered a government employer to pay back wages to employees with disabilities from the date that their respective services were discontinued until the date that they were provided with an alternative position.

Right to Reservation in Employment and Promotion

Every Government establishment should keep aside at least 4% of total vacancies in the cadre strength in each group of posts for persons with benchmark disabilities. However, depending on the type of work, the Government might exempt an establishment from this requirement.

Out of the 4%, 1% each must be reserved for the following categories:

  1. blindness and low vision;
  2. deaf and hard of hearing;
  3. locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy.
  4. autism, intellectual disability, specific learning disability and mental illness, multiple disabilities.

If a suitable person with benchmark disability is not available for recruitment in a year, the employer will carry forward their vacancy to the succeeding recruitment year. If they are unavailable in the succeeding recruitment year also, the employer can take the Government’s approval to first fill the vacancy by interchange among the different categories. The employer can fill up the vacancy by appointing someone other than a person with disability only if there is no person with disability available for the post that year.

The reservation in promotions will be according to Government instructions.

Special Employment Exchange and Unemployment Allowance

The Government maintains offices or places as “Special Employment Exchange” for collecting and giving information about—

  • employers who want to employ persons with disabilities;
  • persons with benchmark disability seeking employment;
  • vacancies for persons with benchmark disabilities seeking employment.

For the Special Employment Exchange, the Government can order private and Government employers to give information about their vacancies for persons with benchmark disability.

The Government can make schemes for providing unemployment allowance to persons with disabilities registered with Special Employment Exchange for more than two years and not placed in any gainful occupation.

Employment in the Private Sector

The Government tries to provide incentives to private sector employers to ensure that at least 5% of their workforce is composed of persons with benchmark disability.

For example, a Government scheme under which employers need not deposit the EPF/ESI contribution for their PwD employees.

What are the Rights of a Person with Disability under Income Tax laws?

Under Section 80 DD, any expenditure by an individual or Hindu Undivided Family resident in India on the medical treatment (including nursing), training and rehabilitation etc. of dependants with disability can be deducted,  up to Rs. 75,000, or Rs. 125,000 in case of severe disability (80 %).

Under Section 80U, a person with disability resident in India can claim a deduction of up to Rs. 75,000, or Rs. 125,000 in case of severe disability (80 %).

How to file a complaint for violation of rights?

Anyone who feels that a Government establishment is discriminating against persons with disabilities can file a complaint with the Grievance Redressal Officer (GRO) (appointed in every Government Establishment).

The GRO will investigate the issue within two weeks and take up the matter with the establishment for corrective action. The GRO will also maintain a register of complaints.

If someone is not satisfied with the action taken on their complaint, they can approach the District-Level Committee on Disability.

What is the punishment for violating the law?

 

CRIME PUNISHMENT
Violating any provision of the PwD Act or Rules First offence – Fine up to Rupees ten thousand

Subsequent offences – Fine of Rupees fifty thousand to five lakh
Fraudulently getting benefits meant for persons with benchmark disabilities Jail time up to two years and/or fine up to Rupees one lakh
Atrocities such as:

●     Intentionally insulting or intimidating a PwD to publicly humiliate them

●     Assaulting a PwD to dishonour them, or outraging the modesty of a woman with disability

●     Using one’s position to sexually exploit or dominate the will of a child or woman with disability

●     Voluntarily injuring, damaging, or interfering with the use of any limb or sense or supporting device of a PwD

 Jail time of six months to five years and a fine

Resources

Schemes

  • Divyangjan Swavalamban Yojana: Providing concessional credit to start any income-generating, pursuing vocational or skill development, etc.
  • Prerna: Marketing assistance for products made by persons with disabilities
  • State-wise schemes here

Source of Information

Rights of Persons with Disabilities Act, 2016

Rights of Persons with Disabilities Rules, 2017 http://www.swavlambancard.gov.in/

http://disabilityaffairs.gov.in/content/

Glossary Terms

Person with Disability: A person with disability is a person with long-term physical, mental, intellectual or sensory impairment, which restricts their full and effective participation in society equally with others.

Sample Forms

Form IV for applying for Disability Certificate