The Maternity Benefit Act, 1961, designed to safeguard women’s employment during maternity, grants maternity benefits, including fully paid wages for the period of absence. Establishments with 10 or more employees are subject to its provisions. The Lok Sabha approved the Maternity (Amendment) Bill 2017 on March 09, 2017, and the Rajya Sabha passed it on August 11, 2016. The President of India granted assent on March 27, 2017. The Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”) became effective on April 1, 2017, while the crèche facility clause (Section 111 A) took effect from July 1, 2017.
To ensure zero challenges for women’s participation in the workforce, Indian law mandates applicable institutions to provide maternity benefits to female employees. The Maternity benefits in India are governed by the Maternity Benefit Act, 1961 (for non-ESI personnel) & the Employees’ State Insurance Act, 1948, as per their applicability to institutions, factories, and mines.
Employers must inform women about the maternity benefits available under the Maternity Benefit Act upon their joining, either in writing or electronically.
The law permits female employees to work from home during the maternity benefit period if the nature of work permits that.
Applicability
Upon examining Section 2 in conjunction with Section 3(e) of the Maternity Benefits Act, 1961 (“Act”), we can see that the Act applies to specific types of establishments, including factories (defined under the Factories Act, 1948), mines (as per the Mines Act, 1952), and plantations (defined under the Plantations Labour Act, 1951).
The scope of the Maternity Benefit Act extends to government establishments and those employing individuals for equestrian, acrobatic, and other performances, as outlined in Section 2(b). Additionally, the Act covers every shop or establishment, as defined by law, where ten or more individuals have been employed on any day in the preceding twelve months. This applies to shops and establishments within a particular state.
In the context of Delhi, the Act applies to all “establishments” and “commercial establishments” falling under the definitions provided in Section 2(9) and 2(5), respectively, of the Delhi Shops and Establishments Act, 1954.
Furthermore, the Act allows State Governments, with Central Government approval, to declare its applicability to other establishments engaged in industrial, commercial, agricultural, or any other activities.
It is important to note that, except as provided in Sections 5A and 5B, the Act does not apply to factories or other establishments covered by the Employees’ State Insurance Act, 1948, as per Section 2(2) of the Act. Additionally, Section 26 grants the appropriate Government the authority to exempt establishments from the Act’s provisions through a notification, subject to the conditions specified in Section 26.
Eligibility
To qualify for maternity benefits under the Maternity Benefit Act, a woman needs to have worked in an establishment for a minimum of 80 days within the preceding 12 months.
Pregnancy & Delivery
(Sec 5)
The new law raises maternity leave to 26 weeks.
It also prolongs prenatal leave to eight weeks. A woman with two or more children is entitled to only 12 weeks of maternity leave. In this case, prenatal leave remains at six weeks.
Payment of medical Bonus
(Sec 8)
Each entitled woman under this Act shall also receive a medical bonus of Rs. 3500/- as per the Maternity Benefit Act and Rs. 5000/- as per the ESI Act from ESIC if the employer/ESIC does not provide prenatal confinement and post-natal care free of charge.
Adoptive or commissioning mothers
(Sec 5e (4))
Both the “commissioning mother” and the “adopting mother” are eligible for a 12-week maternity leave.
Creche Facility
(Sec 11A)
Establishments with fifty or more employees must provide a creche facility within a prescribed distance, either independently or as part of common facilities.
Work-from-home option
Sec 5(5)
If a woman’s assigned work allows for remote tasks, the employer can choose to permit her to work from home after she has utilized the maternity benefits. The employer and the woman can mutually agree upon the terms and duration of this arrangement.
Dismissal during Absence of Pregnancy
(Sec 12)
An employer is prohibited from terminating or dismissing a woman who is on leave in accordance with the Maternity Benefit Act.
Situations for claiming maternity advantage
A woman is eligible to receive maternity benefits only if she has worked for the employer for a minimum of eighty days in the twelve months immediately preceding the expected date of delivery.
Approaches to Applying for Maternity Benefits
To avail maternity benefits as per the 1961 Act, any woman desiring to exercise this right must formally notify her employer using the prescribed form and method specified by the employing organization. The notice should encompass the following details:
- Maternity benefit and any additional entitlements under this Act.
- Designation of the recipient for these payments.
- A commitment not to engage in work at the company during the period of maternity benefits.
- The official commencement date of her absence from work.
Upon submission of valid pregnancy documentation, the employer is obligated to make advance payments for the woman’s maternity benefits.
Submitting a grievance in accordance with the provisions of the Maternity Benefit Act of 1961.
If an employer denies a woman maternity benefits, medical benefits, releases her from her job, or expels her during maternity leave, she has a 60-day window to appeal the decision. This can be done by contacting an inspector appointed under the Maternity Benefit Act, 1961. In the rare circumstance where there is a disagreement with the inspector’s recommendations, the woman has 30 days to propose an alternative to the suggested expert. If the dispute persists or involves a more substantial legal matter, she also has the option to file a lawsuit within a year.
Key features of the amendment in Maternity Benefit.
The Rajya Sabha and Lok Sabha approved the Maternity Benefits (Amendment) Bill, 2017 on August 11, 2016, and it received the President of India’s assent on March 27, 2017. The Maternity Benefits (Amendment) Act 2017 came into effect in India on April 1, 2017, except for the clauses related to childcare facilities (Section 11), which were implemented on July 1, 2017. While the amended Act maintains its fundamental principles, it enhances benefits and encourages improved child care.
Our investigation reveals that the four key aspects of this legislation underwent the following changes:
1. Duration of leave: The amendment extends maternity leave to 26 weeks, not exceeding 8 weeks before the expected due date unless the woman has two or more living children. This represents a 117% increase in the overall maternity leave period compared to the previous Act. The amendment aligns with the International Labour Organization’s (ILO) recommendation of 18 weeks or more, aiming to provide mothers adequate time for recovery and enhance child care, ultimately reducing infant mortality. An exception is made for adoption, allowing commissioning mothers or women adopting children under three months old to avail twelve weeks of maternity leave.
2. Job protection: The original Act’s provisions regarding discharge and dismissal remain unchanged.
3. Financial benefits: Immediate financial benefits have not been implemented, but the amendment grants women the right to work from home if mutually agreed upon with their employer. Additionally, businesses with 50 or more employees are required to provide a crèche facility either independently or as part of common areas. Employers are mandated to allow women four visits to the childcare provider.
The most significant modification involves extending maternity leave from 12 to 26 weeks, in line with the World Health Organization’s (WHO) recommendation of nursing a child for 24 weeks post-birth to reduce the risk of mortality. This extension aims to decrease the number of women leaving their jobs due to inadequate maternity leave. The longer leave duration aligns with the suggestion of the Maternity Benefits Convention (no. 183). The inclusion of maternity leave for commissioning and adopting women is a crucial enhancement, acknowledging their role in parenthood. With these changes, India now ranks third globally in terms of the maternity benefits provided to women, trailing behind Canada and Norway.
Are creche facilities obligatory?
Section 11A of the Amendment Act, 2017 explicitly states that “every establishment” must establish crèche facilities. Therefore, interpreting the language literally implies that the section mandates the establishment of crèches only in those establishments falling under the definition of “establishment” as outlined in Section 3(e) of the Act.
It can also be deduced that an establishment excluded under Section 2(2) or by notification under Section 26 of the Act is not compelled to establish a crèche as required.
As clarified in the notification on behalf of The Maternity Benefit (Amendment) Act, 2017, since Section 2 has not undergone an amendment, there are no changes regarding the application of the 1961 Act. According to Section 2(b), an “establishment” includes every shop or establishment within the meaning of any law currently in force regarding shops and establishments in a State.
Consequently, crèches are mandatory in all establishments covered under the Delhi Shops and Establishment Act, 1954. As per Section 2(5) of the 1954 Act, a “commercial establishment” refers to premises where any trade, business, profession, or work related to or incidental to these activities is carried out. Additionally, Section 2(9) of the 1954 Act defines “establishment” to include a shop, a commercial establishment, and more.
Therefore, companies, firms, and consultant companies, even if incorporated or registered under The Partnership Act, 1932, or the Companies Act, 2013, must establish crèches.