The Maternity Benefits Act, 1961 aims at regulating employment of women employees all over the country. The act provides 12 weeks as the maximum period for which any working woman shall be entitled to maternity benefit. She can avail this benefit as 6 weeks up to and including the day of her delivery and 6 weeks immediately following the day of her delivery. (Section 4)
The Maternity Benefit Act, aims to regulate of employment of women employees in certain establishments for certain periods before and after child birth and provides for maternity and certain other benefits.
Applicability of the Act
The Act applies to:
- Every factory, mine or plantation (including those belonging to Government),
- An establishment engaged in the exhibition of equestrian, acrobatic and other performances, irrespective of the number of employees, and
- Every shop or establishment wherein 10 or more persons are employed or were employed on any day of the preceding 12 months.
The State Government may extend the Act to any other establishment or class or establishments; industrial, commercial, agricultural or otherwise.
However, the Act does not apply to any such factory/other establishment to which the provisions of the Employees’ State Insurance Act are applicable for the time being.
But, where the factory/establishment is governed under the Employees’ State Insurance Act, and the woman employee is not qualified to claim maternity benefit under section 50 of that Act, because her wages exceed Rs. 3,000 p.m. (or the amount so specified u/s 2(9) of the ESI Act), or for any other reason, then such woman employee is entitled to claim maternity benefit under this Act till she becomes qualified to claim maternity benefit under the E.S.I. Act.
Maternity Benefit
Every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the rate of the average daily wage for the period of her actual absence.
Period for which benefit allowed
The maximum period for which any woman shall be entitled to maternity benefit shall be 12 weeks in all whether taken before or after childbirth. However she cannot take more than six weeks before her expected delivery.
Prior to the amendment of 1989, a woman employee could not avail of the six weeks’ leave preceding the date of her delivery; she was entitled to only six weeks leave following the day of her delivery. However, by the above amendment, the position has changed. Now, in case a woman employee does not avail of six weeks’ leave preceding the date of her delivery, she can avail of that leave following her delivery, provided the total leave period, i.e. preceding and following the day of her delivery does not exceed 12 weeks.
Who is Entitled to Maternity Benefit
- Every woman employee, whether employed directly or through a contractor, who has actually worked in the establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery, is entitled to receive maternity benefit.
- The qualifying period of 80 days shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of immigration.
- For calculating the number of days on which a woman has actually worked during the preceding 12 months, the days on which she has been laid off or was on holidays with wages shall also be counted.
- There is neither a wage ceiling for coverage under the Act nor there is any restriction as regards the type of work a woman is engaged in.
Notice For Maternity Benefit
A woman employee entitled to maternity benefit may give a notice in writing (in the prescribed form) to her employer, stating as follows:
- that her maternity benefit may be paid to her or to her nominee (to be specified in the notice);
- that she will not work in any establishment during the period for which she receives maternity benefit; and
- that she will be absent from work from such date (to be specified by her), which shall not be earlier than 6 weeks before the date of her expected delivery.
The notice may be given during the pregnancy or as soon as possible, after the delivery.
On receipt of the notice, the employer shall permit such woman to absent herself from work after the day of her delivery. The failure to give notice, however, does not disentitle the woman to the benefit of the Act.
Restriction on Employment of Pregnant Women
- No employer should knowingly employ a woman during the period of 6 weeks immediately following the day of her delivery or miscarriage or medical termination of pregnancy. Besides, no woman should work in any establishment during the said period of 6 weeks.
- Further, the employer should not require a pregnant woman employee to do an arduous work involving long hours of standing or any work which is likely to interfere with her pregnancy or cause miscarriage or adversely affect her health, during the period of 1 month preceding the period of 6 weeks before the date of her expected delivery, and any period during the said period of 6 weeks for which she does not avail of the leave.
Eligibility & Conditions for Claiming Benefits
The Act lays down that any women employed, whether directly or through any agency, for wages in any establishment is eligible to claim maternity benefits if she is expecting a child and has worked for her employer for at least 80 days in the 12 months immediately preceding the date of her expected delivery. (Section 5)
A woman looking forward to maternity benefits could ask the employer to give her light work for a month. Such request should be made at least 10 weeks before the date of her expected delivery. At that time she needs to produce a certificate confirming her pregnancy. (Section 5)
Also she needs to give a written notice to the employer about 7 weeks before the date of her delivery regarding her absence period pre and post delivery. (Section 5).
Cash Benefits
- Leave with average pay for 6 weeks before and 6 weeks after the delivery.
- Medical bonus of at least Rs. 1000 extending to Rs. 20000 if the employer is unable to provide free medical care to the women employee.(Section 8) (Amended on 15-04-2008)[2]
- Additional leave with pay for up to 1 month on production of proof, revealing illness due to pregnancy, delivery, miscarriage, or premature birth. (Section 10)
- In case of miscarriage, 6 weeks leave with average pay from the date of miscarriage. (Section 9)
Non Cash Benefits/Privilege
- Light work for 10 weeks before the date of expected pregnancy if she asks for it.
- Two nursing breaks in the course of her daily work until the child attain age of 15 months. (Section 11)
- In case of tubectomy operation leave with wages for 2 weeks. (Section 9A)
- No discharge or dismissal while being on maternity leave. (Section 12)
- No change to her disadvantage in any of the conditions of her employment while on maternity leave. (Section 12)
- Pregnant woman discharged or dismissed may still claim maternity benefit from the employer. (Section 12)
Women employee who is dismissed on grounds of gross misconduct loses her rights under the Act for Maternity Benefit.
Miscarriage and Tubectomy Operations
In case of miscarriage or medical termination of pregnancy, a woman shall, on production of the prescribed proof, be entitled to leave with wages at the rate of maternity benefit, for a period of 6 weeks immediately following the day of her miscarriage or medical termination of pregnancy.
In case of tubectomy operation, a woman shall, on production of prescribed proof, be entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately following the day of operation. (Section 9 & 13)
Illness Arising Out of Pregnancy
A woman suffering from illness on account of miscarriage, medical termination of pregnancy, delivery, premature birth is entitled for further leave for 1 month in addition to the leave with wages at the rate of maternity benefit. (Section 10)
Prohibition on Employment during Certain Periods
The Act prohibits an employer from knowingly employing a woman, or any women from working, 6 weeks immediately following the day of her delivery or miscarriage. (Section 4)
Discharge from Employment
The Act prohibits dismissal or discharge or variation in conditions of service to the disadvantage of any pregnant women, while she is absent due to reason under the Act. (Section 12)
She can claim maternity benefit or medical bonus, even if discharged or dismissed during pregnancy. This shall not be applicable in case of dismissal for gross misconduct. (Section 12)
Benefits in Case of Death of a Pregnant Employee
In such case, the maternity benefit shall be paid only for the days up to and including the day of death. (Section 7)
The employer should pay such benefit or amount to the person nominated by the woman and in case there is no such nominee, then her legal representative. (Section 7)
Medical Bonus
Every woman entitled to maternity benefit shall also be allowed a medical bonus of Rs. 250, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.
Duties of Employers
Important obligations of employers under the Act are:
- To pay maternity benefit and/or medical bonus and allow maternity leave and nursing breaks to the woman employees, in accordance with the provisions of the Act.
- Not to engage pregnant women in contravention of section 4 and not to dismiss or discharge a pregnant woman employee during the period of maternity leave.
Right of Employees
Important rights of an employee are:
- To make a complaint to the Inspector and claim the amount of maternity benefit improperly with held by the employer.
- To appeal against an order of the employer depriving her of the maternity benefit or medical bonus or dismissing or discharging her from service, to the competent authority, within 60 days of the service of such order.
Offences and Penalties on Employers
The Act also imposes punishment/penalty if any employer fails to pay maternity benefit to an eligible women or discharges or dismisses the woman during or on account of her absence from work.
For failure to pay maternity benefit as provided for under the Act, the penalty is imprisonment up to one year and fine up to Rs. 5000. The minimum being 3 months and Rs. 2000 respectively.
For dismissal or discharge of a woman as provided for under the Act, the penalty is imprisonment up to one year and fine up to Rs. 5000. The minimum being 3 months and Rs.2000 respectively.
Maternity Benefits Act, 2017 Amendments
Applicability of the Act: As per Section 2 of the Act, The Act is applicable to all those women employed in factories, mines and including every shops or commercial establishments employing 10 or more employees. As per this section the original provision will prevail i.e. the Act is applicable to all women who are employed in any capacity directly or through any agency i.e. either on contractual or a consultant.
Protection from termination or dismissal during the pregnancy
Section 12 of the Maternity Benefit Act, 1961 emphasizes that any dismissal or discharge of a women during the pregnancy is unlawful and such employer can be punished under section 12 of the Act. However, in cases of gross misconduct, the employer can take necessary actions as per the defined disciplinary policy of the Company.
Duration of Maternity Leave in India: The Act has increased the duration of paid maternity leaves to 26 weeks from the present 12 weeks. The extended period is applicable to women in case of the first and second child. Women who are expecting after having 2 children, the duration of paid maternity leave shall be 12 weeks i.e. 6 weeks pre-delivery and 6 weeks post-delivery.
For adoptive and commissioning mothers: The Act now extends to adoptive mothers as well. Every woman who has adopted a child will get 12 weeks of maternity leave from the date of adoption.
Work from Home: It also introduces the option of ‘work from home’ for mothers. After the expiry of the 26 weeks’ leave period, the woman can use this option to do her work from home. This option can be modified according to the nature of the work and terms and conditions levied by the employer.
Crèches: The Act makes it compulsory for every establishment employing 50 or more women to have in-house creche facilities and allows women to visit the facility 4 times during the day.[6]but the age of the children up to which age are entitled to the facility of crèche is not mentioned in the Act.
Awareness: The Act makes it compulsory for employers to aware women about the maternity benefits at the time of their appointment. Such information must be given in writing and electronically.
Major changes
- The Maternity Benefit (Amendment) Act 2017 has increased the duration of paid maternity leave available for women employees to 26 weeks from 12 weeks. However for those women who are expecting after having 2 children, the duration of the leave remains unaltered at 12 weeks.
- The paid maternity leave can be availed 8 weeks before the expected date of delivery. Before the amendment, it was 6 weeks.
- The Maternity Benefit (Amendment) Act 2017 has extended the benefits applicable to the adoptive and commissioning mothers and provides that woman who adopts a child will be given 12 weeks of maternity leave from the date of
- The Act has introduced an enabling provision relating to “work from home” that can be exercised after the expiry of 26 weeks’ leave period. Depending upon the nature of work, a woman can avail of this provision on such terms that are mutually agreed with the employer.
- The amended Act has mandated crèche facility for every establishment employing 50 or more employees. The women employees should be permitted to visit the facility 4 times during the day.
- The amended Act makes it compulsory for the employers to educate women about the maternity benefits available to them at the time of their appointment.
Paternity Benefit Bill, 2017
In 2017, After the Maternity Benefit (Amendment) Act, 2017, a new bill is known as Paternity Benefit Bill had been proposed by Rajeev Satav, MP from Maharashtra, in the Lok Sabha in September for the benefits of fathers of newborns. The bill states that all workers, including those in the unorganised and private sector, get paternity leave of fifteen days extendable up to three months. It emphasized on equal parental benefits for both the mother and the father.
There are certain provisions for employees working in government sector to possess benefits of paternity leaves. The Central Government in 1999, by notification under Central Civil Services (Leave) Rule 551 (A) made provisions for paternity leave –
- for a male 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 such leave is not availed within the period, it shall be treated as lapsed.
- He shall be paid leave salary equal to the pay last drawn immediately before proceeding on leave.
Paternity Leave Policies around the World – India comes among 92 countries in the world without any national provisions for paid paternity leave. Nonetheless having the most infant mortality rate, countries like India, Nigeria, China don’t have any provisions of paternity leave to entitle any benefit to fathers. Comparatively, countries with higher infant population like Brazil and most of the European countries have the best parental leave policies.
- Norway: The statutory parental leave is either 49 weeks at 100% salary or 59 weeks at 80% salary to be divided between both parents but with some constraints. The father is entitled to take 2 weeks paid leave when the child is born and must take additional 14 weeks of paid leave before the child turns 3 years of age. The remaining weeks to use are up to the parents how they want to use it.
- Iceland: Both the parents have an independent right to parental leave of three months and also have a joint right to three additional months, which may be either taken by one of the parents or equally divided between them.
- Sweden: Parents are provided the policy of getting 480 days (16 months)of paid parental leave at 80% of their salary. They are also entitled to 180 bonus days in case of twins. Swedish fathers must take at least three of those 16 months. The days do not expire till the time the child reaches age of 8.
- Spain: Fathers are entitled to 30 days paid leave to do justice with fatherhood and bond with the new born child at 100% of covered pay.