The Maternity Benefit (Amendment) Act 2017 is an amelioration of the Maternity Benefit Act, 1961. The establishments are required by the law to offer maternity benefits to women employees in order to protect their rights during pregnancy and after childbirth. The Act applies to all shops and establishments with ten or more employees. The maternity benefits provided under the Employees’ State Insurance Act, 1948 can be availed by women who work in factories with ten or more workers.
The makes it clear that a woman cannot be asked to work in the course of her employment for a period of six weeks immediately preceding her delivery. The law provides same benefits to women who have a miscarriage or tubectomy. The Section 12 of the Act makes it is unlawful for an employer to terminate the employment of any woman during pregnancy and doing so would lead to severe punishment and imposition of fines. In order the avail the benefits prescribed under the Act, a woman must have worked for the employer for a minimum period of one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.
Applicability of the Act:
The Act applies to:
- Government operated factories, mines or plantations which require physical labour and other skills.
- Shops or establishments where more than ten people are employed.
Employers must note that there is no wage ceiling or any restriction with regards to the type of work a woman is engaged in, for coverage under the Act. The definition of a woman employee under the Act extends the benefit to all women employees including those employed through an agency or on a contract basis.
Compliance requirements for employers:
The employers under the amended rule are required to:
- Review and amend employee maternity leave policies to reflect the expanded benefits under the Act
- Update and include appropriate references with respect to maternity benefits in employment contracts – reflecting the new maternity benefit entitlements and obligation under the law.
- Taking into account the health and safety measures of new mothers, the Act also mandates employers to ensure that no woman works during the six weeks immediately following the day of her delivery or her miscarriage. It is also illegal for an employer to discharge or dismiss a woman employee on account of such absence.
- Furthermore, the employer must not employ pregnant woman employee to do any work of an arduous nature or work that involves long standing hours.
- If an employer contravenes to the provisions or the rules of the Act, the Act provides for penalties either with imprisonment which may extend to one year, or with a fine which may extend to INR 5000 or with both.
Salient features of the Act
Leaves and Wages:
The Act increased the duration of paid maternity leave available for female employees in India from 12 weeks to 26 weeks. The Act allocates the benefit of 12 weeks of leave to women who have opted for adoption of a child below the age of 3 years. The commissioning mother (a biological mother who uses her eggs to create an embryo implanted in another woman) will be entitled to 12 weeks of maternity leave too from the date the new born is handed over to them as per the amended Act.
An employee can enhance their maternity benefit as modified by the Maternity Benefit amendment bill, 2016 as it can be extended to women who are already under maternity leave at the time of enforcement of this amendment. It was clarified that those employees who had already availed 12 weeks of maternity leave before enforcement of the amended Act will not be entitled to avail the extended benefit of the 26 weeks leave.
Over and above the allowed capping, a woman who undergoes a medical termination of the pregnancy, has had a tubectomy surgery or faces any illness after delivery can claim an extension of 1 more month (with wages).
Crèche Facilities:
Section 11A of the Act makes it mandatory for every establishment with fifty or more employees to establish a Crèche facility. The employer must allow women at least four hours of visits a day to the crèche and it would also include the interval for rest allowed to her. The Crèche service should be within 500 meters from the entry of establishment and must provide with common facilities. The use of a crèche facility is proposed to be extended to children of the age group of 6 months to 6 years of all employees including temporary, daily wage, consultant and contractual personnel. The crèche preferably should open for 8 hours to 10 hours. In this case, the workers can follow a shift system. In case the establishment has day and night shifts, then the crèche should also be run in shifts.
Other rights and benefits:
- The Act makes it mandatory for the employers to inform women in writing and electronically about the maternity benefits available under the Act upon their joining.
- The Act provides for the provision of ‘Work from Home’, however, it can only be exercised after mutual agreement between the employee and employer.
Paternity Leave and its Applicability:
In India, the Central Government in 1999 by notification under Central Civil Services (Leave) Rule 551 (A) made provisions for paternity leave for a Central Government employee (including an apprentice and probationer) with less than two surviving children for a period of 15 days to take care of his wife and new born child. He can avail this leave 15 days before or within 6 months from the date of delivery of child. If this leave is not availed within the prescribed period, then it will lapse. These rules apply in cases of adoption as well.
While paternity leave is sanctioned for government employees, there isn't any such law that indoctrinates the private sector to make it obligatory. Hence, paternity leave is open to interpretation by individual companies.
Despite there being no legislation, in the case of Chander Mohan Jain Vs N.K.Bagrodia, the New Delhi High Court passed a judgement allowing paternity leave in private schools with petitioner receiving his deducted salary back as his leaves were recognised as Paternity leaves by the court. The Maternity Benefit Amendment Act can be seen as a positive move ensuring job security for women as it safeguards the interest of working women who plan to conceive and balance both their professional as well as personal life. This act will also help in reducing the cases of women dropping out of the labour force due to absence of adequate maternity leave. However, the amendment has several drawbacks like women working in unorganized sector not included to name a few. While almost 80% of the Indian women are employed in it, the Act doesn’t include the establishments with ten or less than ten employees.
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