24 September, 2016
Enhancements to maternity benefits in India under the Maternity Benefit Act, 1961 (the Act) have been in the spotlight for some time. Calls for such enhancements have culminated in the Maternity Benefit (Amendment) Bill, 2016 (the Bill), which has now received assent from the Rajya Sabha, the upper house of India's parliament.
The Bill introduces key changes to the maternity benefits set out under the Act, including increased maternity leave entitlements and a new requirement to provide crèche facilities for female employees. Employers should consider these ahead of the Bill receiving assent from India's lower parliamentary house.
Maternity leave: 12 to 26
Currently, female employees falling within the scope of the Act are entitled to 12 weeks' paid maternity leave, up to six of which can be taken before delivery. The Bill seeks to increase this to 26 weeks' paid maternity leave, up to eight of which can be taken before delivery, but this is intended to be made available only in respect of the employee's first two children. For subsequent births, employees will continue to be entitled to 12 weeks' paid maternity leave.
Entitlements for commissioning and adoptive mothers
The Bill also extends maternity benefits to "commissioning mothers". A commissioning mother is defined by the Bill as a biological mother whose egg is used to create an embryo implanted in another woman. Employees who are commissioning mothers will be entitled to 12 weeks' paid maternity leave under the Bill.
An adoptive mother, i.e. a woman who has legally adopted a child below the age of three months, will now also be entitled to 12 weeks' paid maternity leave under the Bill.
For both commissioning and adoptive mothers, the date of commencement of maternity leave is calculated from the date the child is handed over to the mother.
Crèche facilities
Another key change is the introduction of a requirement for establishments with more than 50 employees to provide crèche facilities for female employees. These facilities will need to be established within a stipulated distance, either separately or along with common facilities. Female employees will be entitled to make up to four visits a day to the crèche, and these periods will also count as rest breaks for such employees.
Working from home
The Bill also introduces the option for female employees to work from home, in cases where the work assigned to them are of such a nature as to allow them to work from home. Female employees will need to have utilised their maternity leave entitlements before exercising this option, and working from home arrangements will need to be mutually agreed between the employer and employee.
Right to know
The last key amendment introduced by the Bill is a "right to know" requirement which will mandate employers to inform female employees of their rights under the Act at commencement of their employment. This will need to be done in writing and electronically.
Key takeaways
Although the Bill has yet to receive assent from the Lok Sabha, India's lower parliamentary house, employers should prepare for the changes proposed in the Bill. In particular, thought will need to be given around how crèche facilities can be set up to meet the proposed requirement, and how employers will inform new female joiners of their rights under the Act in practice. Employers can also consider updating their internal policies ahead of the passing of the Bill to reflect the new maternity leave entitlements.
For further information, please contact:
Gareth Thomas, Partner, Herbert Smith Freehills
gareth.thomas@hsf.com
