The Maternity Benefits Act, 1961 aims at regulating the 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 of this benefit as 6 weeks up to and including the day of her delivery and 6 weeks immediately following the day of her delivery.
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.
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.
Notice For Maternity Benefit
A woman employee entitled to maternity benefit may give a notice in writing 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
- 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.
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.
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.
- A woman looking forward to maternity benefits could ask the employer to give her light work for a month. Such a request should be made at least 10 weeks before the date of her expected delivery.
Cash Benefits
- Leave with average pay for 6 weeks before and 6 weeks after the delivery.
- The 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 the production of proof, revealing illness due to pregnancy, delivery, miscarriage, or premature birth. (Section 10)
Non Cash Benefits/Privilege
- Two nursing breaks in the course of her daily work until the child attains the age of 15 months. (Section 11)
- In the 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 women discharged or dismissed may still claim maternity benefit from the employer. (Section 12)
Miscarriage and Tubectomy Operations
In case of miscarriage or medical termination of pregnancy, a woman shall, on the 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 the 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)
Discharge from Employment
The Act prohibits dismissal or discharge or variation in conditions of service to the disadvantage of any pregnant woman, while she is absent due to reason under the Act. (Section 12). And, she can claim maternity benefit or medical bonus, even if discharged or dismissed during pregnancy. (Section 12)
Benefits in Case of Death of a Pregnant Employee
In such a 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
- 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
- To make a complaint to the Inspector and claim the amount of maternity benefit improperly withheld 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
- For failure to pay maternity benefit as provided for under the Act, the penalty is imprisonment up to one year and a 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 shop or commercial establishments employing 10 or more employees.
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.
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.
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 of the maternity benefits 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 unorganized and private sector, get paternity leave of fifteen days extendable up to three months. There are certain provisions for employees working in the government sector to possess the 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.
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 populations 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.
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 the case of twins. Swedish fathers must take at least three of those 16 months.
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.
