Thursday, 18 May 2017

Maternity Benefits in India

Authors: Rudra Srivastava and Ritika Modee (Singhania & Partners)

The Maternity Benefit Act, 1961 is social security legislation and was enacted “to regulate employment of women in certain establishments for certain period before and after child birth to provide for maternity benefit and certain other benefit”.

The Maternity Benefit (Amendment) Act, 2017 (hereafter “Act”) received the much awaited Presidential assent on 27th March, 2017 and was published in the Official Gazette of India on 28th March, 2017. The Central Government in exercise of powers conferred upon it under Section 1(2) of the Act has appointed 1st April 2017 as the date on which all the provisions of the Act shall become effective except for Section 5(5) which provides for “work from home” in certain cases which shall be effective from 1st day of July 2017. 1

Some of the important amendments that have been brought about by the Act can be listed as follows:

The benefit of paid maternity leave now stands increased from earlier 12 weeks to 26 weeks. Of these not more than eight weeks of leave can be availed before the expected date of delivery as compared to six weeks prior to amendment. However, a restriction has been imposed and any woman having two or more children is entitled to only 12 weeks of paid maternity leave of which maximum of 6 weeks can be availed preceding the expected date of her delivery.

Another significant change that has been brought by the Act is the conferment of benefit of paid maternity leave on the both adoptive mother 2 and commissioning mother 3.

The Act now makes provision for “work from home” where an employer may allow a woman to work from home after she has availed the maternity benefit for the prescribed period of 26 weeks provided that the nature of work that has been assigned to her is such that she can work from home and upon such conditions as may be mutually agreed between the employer and the woman.

The Act also requires every establishment having fifty or more employees to provide crèche facility and allow the woman employees (mothers) four visits a day to the crèche.

A responsibility has been conferred upon the establishments to intimate every woman about the maternity benefits to which she is entitled to under the Act at the time of her initial appointment both in writing as well as in electronic form.

The Act can be said to have brought about progressive changes however, it has its own shortcomings. The Amendment Act has failed to recognize the right of a father to paid leave losing a chance to make it more socially advanced. The expenses of paid leaves and crèche facility are required to be borne by the employer which can prove to be financially burdensome. This may result in detriment on the part of the employers to have more women employees.

Also, appropriate Government Rules are required providing various specification as to the distance of crèche, details as to time which may be permitted for the nursing breaks during the visits to the crèche and specifying clearly whether it is inclusive or exclusive of the time taken to reach the crèche etc.

Effective implementation will be a must in order to reap the actual intended benefits of the Act.

By notification in the Official Gazette dated 31st March, 2017
Adopting a child below the age of three months
Section 2 (ba) ‘commissioning mother’ means biological mother who uses her egg to create an embryo implanted in any other woman.

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