21 November, 2019
General
The Maternity Benefits Act, 1961 is a Social Security Legislation. It is an Act to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity benefit and certain other benefits.
Applicability
Every establishment being a factory, mine or plantation including a Government establishment.
Every shop or establishment employing 10 or more employees on any day of the preceding 12 months.
Eligibility
A woman must have worked in an establishment for a period of at least eighty days in the past 12 months.
Maternity Benefits
Payment of maternity benefit at the rate of the average daily wage for the period of actual absence immediately preceding the day of her delivery or actual day of her delivery
A woman can avail 26 weeks of maternity leave. She could avail up to eight weeks leave before and the balance after delivery.
A woman with 2 living children entitled to 12 weeks of maternity leave.
Adoption Leave
A woman adopting or commissioning mother of a baby of less than three months is entitled to twelve weeks leave from the date the baby is handed over to her.
Medical Bonus
A woman is entitled to a medical bonus of ₹3,500/- if pre-natal confinement and post- natal care is not provided by the employer free of charge.
Notice of Claim
A pregnant woman is required to give notice of claim for payment of maternity benefits to her employer and intimate the date of her absence from work.
Paternity Leave
Under Central Civil Services Rules, Paternity leave of fifteen days is allowed to government employees to take care of his wife and new born child.
There is no legal provision for granting Paternity Leave to male employees in the Private Sector. However, some Private Sector establishments have extended varying duration of paternity leave. This is more of an exception than a norm.
Leave for miscarriage
A woman is entitled to six weeks of leave in case of miscarriage.
Leave for Tubectomy
A Woman undergoing tubectomy operation is entitled to two weeks of paid leave after the procedure .
Leave for illness
A woman suffering from illness arising out of pregnancy, delivery, premature birth of child, miscarriage, medical termination of pregnancy, or tubectomy entitled to one month additional leave with wages.
Nursing Breaks
A woman returning to work after delivery entitled to two nursing breaks in addition to normal interval of rest, until the child is 15 months old
Crèche Facility
Establishments with fifty or more employees is to have crèche facility within prescribed distance.
Employer should allow the woman to visit the crèche four visits a day, including the interval of rest.
Protections
- Employers required to inform woman in writing, upon joining, of available maternity benefits, eligibility.
- Eligible women can be permitted to work from home if nature of work permits
- A woman cannot be dismissed for taking maternity leave and cannot serve a termination notice on a woman on maternity leave
- Terms of service cannot be changed to woman’s disadvantage during her maternity leave
- Women should not work in any establishment during six weeks immediately after her delivery, miscarriage or medical termination of pregnancy.
- Woman on maternity leave entitled to her existing wages before going on such leave
Contraventions by the Employer
Employer contravening the provisions of the Act is liable to be punished with imprisonment of not less than three months but which may extend to one year and with fine not less than two thousand rupees but extendable up to five thousand rupees.
Labour Reforms
The Central Government, in its endeavor to introduce labour reforms in the country is planning to merge 44 labour laws and bring out four new Codes in the areas of — wages, social security, industrial safety & welfare, and industrial relations.
The Code on Wages, 2019 is the first one to be enacted. It received Presidential assent on 08th August 2019 and has been published in the official Gazette on 23rd August 2019.
The Draft Social Security Code has been circulated for seeking comments and suggestions from the stake holders and is likely to be enacted soon.
Remaining two codes will be enacted in due course.
Conclusion
The Maternity Benefits Act 1961 will be subsumed in the Social Security Code and repealed on enactment of the Social Security Code. However, the provisions of the Maternity Benefits Act 1961 have largely remained unaltered in the draft Code.
For further information, please contact:
Dipankar Bandyopadhyay, Partner, VERUS Advocates
dipankar.bandyopadhyay@verus.net.in
