Table of Contents Hide
- Introduction to Maternity Benefit Act
- Establishments covered under the law
- Who are eligible for maternity benefits?
- Benefit of Maternity Leave
- Maternity Benefits other than Maternity leave
- Details of Maternity Benefits other than Maternity Leaves
- Benefit of creches provided under 2017 Amendment
- Right to payment
- Payment of Medical Bonus
- Work from home
- Prior Intimation
- Leave for miscarriage, etc.
- Leave with wages for tubectomy operation.
- Leave for illness arising out of pregnancy.
- Nursing Breaks
- Dismissal during the absence of pregnancy
- No deduction of wages in some instances
- Employment of women prohibited during specific periods
- Landmark Judgements on Maternity Benefit Act
Introduction to Maternity Benefit Act
Becoming a mother is one of the most beautiful experience of a woman’s life. But along with it comes a host of responsibility and as a society we need to provide all the support such mothers need so that they can give there undivided attention to the new born. Maternity Benefit Act is an endevaour in the same direction. While we already had Maternity Benefit Act 1961 in place, but with more and more women joining Indian formal workforce, it was time to revisit and update the act. Hence, in 2017, the government passed the amendments to the Maternity Benefit Act, 1961. Let us understand what are the benefits defined under the original maternity benefit act and the amendment that was passed in 2017.
The constitutional framework aims to give women equality in all spheres of life. The Maternity Benefit Act, which follows the model of the International Labor Organization, seeks to provide maternity protection to women to promote this goal. The Maternity Benefit Act of 1961 is a piece of legislation that safeguards women’s work during pregnancy. It gives female employees the right to maternity benefits, which include fully paid salaries for the time they miss working to care for a child.
Establishments covered under the law
After reading Sections 2 and 3 (e) of the Maternity Benefits Act of 1961, it can be said that every factory, mine, or plantation, as well as any store or enterprise with more than ten employees, is subject to the Maternity Benefits Act of 1961.
The employer should give the employer information about the maternity leave time seven weeks before the due date. In addition, if a woman employee taking leave is absent or dies, the employer should be informed of the person to whom the payment must be sent.
In India, maternity leave cannot be denied or revoked on any grounds. There can be no other policy than the maternity leave policy in India in private firms because the same rule applies to everyone.
The Maternity Benefit Act also applies to government establishments and establishments where people are engaged in the exhibition of equestrian, acrobatic, and other activities (section 2 of the Maternity Benefit Act) (b). Furthermore, the Act applies to any store or business recognized by law that employs ten or more people on any given day during the prior twelve months and shops and establishments in a specific state. It also applies to government establishments and establishments where people are engaged in the exhibition of equestrian, acrobatic, and other activities (section 2 of the Maternity Benefit Act) (b). Furthermore, the Act applies to any business or establishment recognized by law that employs ten or more people on any given day during the previous twelve months and shops and establishments in a specific state.
Who are eligible for maternity benefits?
As per the Act, a woman must have worked as an employee in an establishment for at least 80 days to be eligible for maternity benefit within the past 12 months. The average daily earnings for the period of actual absence are used to calculate payment throughout the leave period. According to the Maternity Benefit Act, a woman will be awarded maternity benefits at the rate of her average daily pay for the three months before her maternity leave.
Benefit of Maternity Leave
India has already switched to a nuclear family system, making assistance from home difficult. Couples have also relocated from their hometowns for corporate careers in various regions. Starting a family and moving through the pregnancy process is a phase that raises a lot of questions. Working couples, as well as pregnant moms, should be aware of the Maternity Leave provisions. In simple language, it is a paid leave of absence from work that allows mothers to care for their newborns while keeping their careers and taking paid vacations. While the first Maternity Benefit Act 1961, was passed in 1961, the contemporary job market has shifted, and we now have many more female employees.
Due to social and economic changes, the maternity act was open to revision. As a result, the Maternity Leave (Amendment) Bill 2017 was introduced in 2017 to amend the Maternity Beenfit Act. The Maternity Benefit Act of 1961 limited female employees to only 12 weeks of maternity leave. However, as mentioned above, the Maternity Benefits Act of 2017 extended the time to 26 weeks. Non-compliance with the laws and regulations also comes with a penalty.
It establishes a term of absence for pregnant female employees to protect the mother and the baby’s health. As a result, women employees will receive more benefits. This Act also describes the various types of maternity leave and employer-provided benefits available to women in the private and governmental sectors. This is a “fully compensated leave” that a working woman can take while pregnant or breastfeeding to care for herself and her child. This 2017 modification considerably modifies India’s earlier Maternity Act 1961 and applies to all businesses and industries with ten or more employees, whether organized or not. This permits them to care for the newborn infant while temporarily leaving the organization. It also allows the mother to receive total remuneration throughout this time.
Up to eight weeks of the 26-week period might be claimed before delivery. You don’t have to plan your leave this way; instead, you can take the entire 26-week period after the baby is born. Also, these are the maximum claim periods; you might claim the benefit for a shorter or longer term. Organizations having ten or more employees, including contract or permanent female employees, became eligible for the establishment of this Act.
The Maternity leave also applies to:
- Tubectomy Cases (permanent contraception performed in females): A woman can take two weeks off from the date of her tubectomy.
- Illness post-pregnancy: Pregnancy is a complicated process that can also be life-threatening. As a result, the Maternity Leave Amendment Bill 2017 provides a one-month benefit to women who face critical circumstances such as premature delivery, miscarriage, or medical termination of pregnancy.
- Leave for Government Civil Employees: They are entitled to 180 days of paid leave for the first two live-born children.
- Leave for private-sector employees: Women in the private sector are expected to discuss maternity leave arrangements with their human resources department. Because it may differ from one company to the next, HR’s responsibility is to design and revise a detailed Maternity Leave Policy and take steps to allow pregnant women to work from home for greater comfort. These private-sector maternity leave rules are critical.
Maternity Benefits other than Maternity leave
Working women can take advantage of several benefits under the Act if they get pregnant.
By giving written or electronic notification to her employer, a woman employee can take advantage of the Act’s benefits.
The following are the various benefits offered by the Maternity Benefit Act to pregnant women, as well as adopting and commissioning moms, following the 2017 Amendment Act:
- The institution should not allow hard work that requires long-standing periods or could interfere with her pregnancy and harm her health during the four and eight weeks preceding her projected birth date. In addition, the business should not hire the woman for six weeks after her due date, termination, or miscarriage. Because of the maternity benefit legislation, the company cannot fire a woman employee for being absent. Furthermore, a woman employee’s maternity benefits cannot be refused unless she is fired or discharged for egregious misconduct.
- In the event of a miscarriage or abortion, the woman must provide proof to be eligible for six weeks of paid leave. In addition, the woman can submit evidence of tubectomy surgery to qualify for two weeks of paid leave. Finally, if a pregnancy-related illness occurs, the lady is entitled to a maximum of one month of paid absence.
- The woman receives a medical incentive of Rs.3500 if the employer does not provide prenatal confinement and post-natal care.
- Every establishment with fifty or more employees must provide a creche at a reasonable distance, and the employer must give the lady four daily trips to the creche. In addition, a woman who officially adopts or commissions a child under three months is entitled to maternity benefits for twelve weeks from when the child is given over to the adopting mother or trusting mother.
- The Maternity Benefit (Amendment) Act of 2017 adds many new benefits. For example, if an employer violates the Act’s laws, they may be sentenced to a year in jail or a fine of up to Rs. 5000, or both, depending on the severity of the violation. The severity of the penalty is determined by the nature of the breach of the Act’s provisions. In addition, a woman who officially adopts or commissions a child under three months is entitled to maternity benefits for twelve weeks from when the child is given over to the adopting mother or trusting mother.
- The Maternity Benefit (Amendment) Act of 2017 adds many new benefits. If an employer violates the Act’s laws, they may be sentenced to a year in jail or a fine of up to Rs. 5000, or both, depending on the severity of the violation. The severity of the penalty is determined by the nature of the breach of the Act’s provisions.
Details of Maternity Benefits other than Maternity Leaves
Benefit of creches provided under 2017 Amendment
Crèches must be established within the prescribed range, either independently or in conjunction with shared facilities, according to Section 11A. According to Section 2(l), “prescribed” means as outlined in rules adopted under this Act. In addition, rules may be established by the State or Central Government, depending on the situation, following Section 28 of the Act to carry out the Act’s aims. The Ministry of Women and Child Development issued the following as some of its main directives in the Gazette.
Crèche For Whom
The use of a crèche facility is being suggested to be made available to all employees, including temporary, daily wage, consultant, and contractual personnel, who have children between the ages of 6 months and 6 years.
Within 500 metres of the beneficiaries’ homes or the job, the centre should be located.
Preferably, the creche should be open for 8 to 10 hours. The workers can then adhere to a shift structure in this situation. If there are day and night shifts in the business, the childcare facility should operate in shifts as well.
Facilities to be provided
Crèches should be made of concrete, have a minimum of 10 to 12 square feet per kid, ventilation, drinking water, and no harmful areas like pits, open drains, or trash cans close to the centre. Other facilities that will be offered are as follows:
- a security guard should’ve gone under police verification.
- Handrails and ramps.
- Every crèche needs to have its own supervisor.
- For every ten children under the age of three in the creche, there should be at least one trained employee.
- The creche should have one qualified employee and a helper for every 20 children over the age of three.
- When there are children present, outsiders like drivers, plumbers, and electricians shouldn’t be allowed inside the daycare.
- A monitoring committee for the crèche should be established with representatives from the administration, parents, and staff.
- establishing a grievance commission to look into cases of sexual abuse.
Right to payment
Every woman has the right to receive maternity benefits from her employer at the rate of her average daily income for the duration of her absence from work, as long as she takes leave in compliance with the Act’s provisions.
- Every woman has the right to, subject to the restrictions of this Act. Her employer is responsible for paying maternity benefits at the average daily wage rate for the duration of her actual absence preceding and including the day of her delivery, as well as the six weeks following that day. – Justification. The average daily wage for this sub-section is equal to the average of the woman’s remuneration for the days she worked during the three calendar months immediately before the day on which she leaves work for maternity leave, or one rupee per day, whichever is the the the higher.
- No woman will be eligible for maternity benefits unless she has worked for at least one hundred and sixty days in the twelve months immediately before her scheduled delivery in the workplace of the employer from whom she is claiming maternity leave: Provided, however, that the aforementioned qualifying period of one hundred and sixty days shall not apply to a woman who has immigrated to the State of Assam while pregnant. Explanation: When calculating the days a woman has worked in the establishment under this section, the days she has been laid off during the twelve months immediately preceding her projected delivery date are taken into account.
- A woman’s maximum entitlement to maternity benefit is twelve weeks, and It encompasses the six weeks leading up to and including the day of her delivery, as well as the six weeks following her delivery. Provided, however, that if a woman dies during this time, the maternity benefit will only be paid for the days leading up to and including her death:
- Provided further that if a woman dies while giving birth to a child or within six weeks of giving birth to a child, leaving behind the child, in either case, the employer is liable for the maternity benefit for the entire period of six weeks immediately following the day of her delivery, but only if the child also dies during the said period, for the days leading up to and including the child’s death.
Payment of Medical Bonus
Suppose no prenatal confinement or post-natal care is provided free of charge by the employer. In that case, every woman entitled to maternity benefit under this Act is entitled to a twenty-five rupee medical incentive from her work.
Work from home
A company may permit a woman to telecommute beyond the Maternity Benefit period if the purpose of the work that is assigned to her is for her to be able to do so. The business and the woman may have generally agreed on the terms of telecommuting.
Every foundation will be expected to provide information about each benefit available under the Act to the lady at the time of her initial arrangement.
The Act has made the “telecommuting” option available, and it may be used beyond the expiration of the 26-week leave term. Given the concept of labor, a woman can take advantage of this arrangement on conditions that are often agreed upon by the firm. The World Health Organization’s recommendation that children should be exclusively breastfed by their mothers for the first 24 weeks led to the increase of maternity leave by 12 weeks to 26 weeks.
The lengthening of maternity leave can aid in children’s overall development and increase their stamina levels.
Leave for miscarriage, etc.
In the event of a miscarriage, a woman is entitled to leave with earnings at the rate of maternity benefit for six weeks immediately following the day of her miscarriage, subject to the provision of such proof as may be stipulated.
Leave with wages for tubectomy operation.
In the event of a tubectomy operation, a woman is entitled to two weeks of maternity leave with wages at the rate of maternity benefit upon provision of such proof as may be stipulated.
Leave for illness arising out of pregnancy.
Upon presentation of such proof as may be required, a woman suffering illness arising from delivery, pregnancy, premature birth of the child, or miscarriage shall be entitled, in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.
Every woman who returns to work after giving birth to a child is entitled to two breaks of the necessary duration in the course of her daily employment to nurse the child until the kid reaches the age of fifteen months, in addition to the rest period permitted to her.
Dismissal during the absence of pregnancy
- It is illegal for an employer to discharge or dismiss a woman absent from work due to the terms of the Maternity Benefit Act during that time.
- It is also illegal to give her a notice of discharge or dismissal on a day when the notification will put her at a disadvantage in her working conditions.
- A woman can be fired or terminated if she is found guilty of any of the above egregious misbehavior. Therefore, her employer may notify her in writing that she may be denied maternity benefits, medical bonuses, or both. However, a woman who receives such notice within sixty days of the date the order was delivered to her has the right to appeal to the appropriate authority. The authority’s decision on the appeal will be final.
No deduction of wages in some instances
No deduction from a woman entitled to maternity benefit under the provisions of this Act shall be made only because of: (a) the sort of job assigned to her under the requirements of section 4’s subsection (3) or breaks for nursing the child given to her under section 11.
Employment of women prohibited during specific periods
- During the six weeks following the day of her delivery or miscarriage, no employer shall knowingly employ a woman in an enterprise.
- During the six weeks following the day of her delivery or miscarriage, no woman may work in any establishment.
- No pregnant woman shall, without prejudice to the provisions of section 6, be required by her employer to do work that is arduous or requires long periods of standing, or that is likely to obstruct her pregnancy or the proper development of the baby in any way fetus, or that is likely to result in her miscarriage or other complications harm her health during the period specified in the section below unless she requests in this regard.
- The time referred to in the preceding sentence shall be the month immediately preceding six weeks before her projected delivery date and any period throughout the said six weeks for which the pregnant woman does not take a leave of absence.
Landmark Judgements on Maternity Benefit Act
Anshu Rani, the petitioner, requested maternity leave from the District Basic Education Officer in Bijnor in 2018. She was granted 90 days of paid maternity leave from October 1 to December 29 instead of the 180 days she had asked for. She was not explained why her leave was being reduced in half. The petitioner complained to the Allahabad High Court after growing impatient with what he saw to be inaction. Avadesh Pratap Singh, the petitioner’s knowledgeable attorney, cited the Maternity Benefit Act of 1961, which was amended in 2017 (Maternity Benefit (Amendment) Act, 2017). Maternity leave has been extended from 8 weeks to 26 weeks per the demands of the 2017 amendment, and the petitioner is qualified to utilize it. Maternity leave constitutes social insurance, the Court declared after hearing the arguments on both sides. The purpose of maternity leave is to support the family and promote mother and child health. The Maternity Benefit Act, 1961, was created by Parliament per the stipulations of Article 42, according to the Allahabad High Court. The legality of an executive or administrative action in withholding maternity benefit must be evaluated on the premise of Article 42 because it mentions “fair and humane conditions of employment” and “maternity relief.”
According to the Kerala High Court, female employees are entitled to maternity leave whether or not their employment is contractual. Rasitha, 35, who was denied maternity leave by Calicut University because the terms of her contract did not foresee the grant of such leave, filed a petition. Justice A Muhamed Mustaq wrote in allowing the petition, “The maternity benefit is not merely a statutory benefit or a benefit flowing out of an agreement.” According to Justice A Muhamed Mustaq, “the maternity benefit is not just a legislative benefit nor a benefit emerging out of an agreement.” The court concluded that a woman employee cannot be denied maternity benefits only because her job status is contractual because it is related to a woman’s dignity. As a result, the University must offer these benefits regardless of the terms of the contract agreement. The Court granted Rasitha’s appeal in light of these factors and mandated that Calicut University pay Rasitha’s maternity benefits, which are the same as those awarded to other University employees, within two months.
Working women will benefit greatly from the Maternity Benefits Act’s amendment’s provisions. However, the flaws of the Act were not taken into account when the amendment was being written.