LSW OPTIONAL NOTES
Maternity Benefits
Act, 1961 in India.
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)
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.
• 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.
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 atleast 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).
A woman looking forward to maternity benefits could ask the employer to give her light work for a month. Such request should be made atleast 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 upto 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)
• 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 upto 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.
• 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
Leave with wages at the rate of maternity benefit, for a period of 6
weeks for miscarriage and 2 weeks for tubectomy 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)
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)
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)
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.
The
salient features of the Maternity Benefit (Amendment) Bill, 2016 are as
follows:—
(i) increase the maximum period of maternity benefit from the existing twelve weeks to twenty-six weeks,
in case of women who have less than two surviving children and in other cases, the existing period of twelve weeks maternity benefit shall continue;
(ii) to extend the maternity benefits to a "commissioning mother" and "adopting mother" and they shall be entitled to twelve weeks maternity
benefit from the date the child is handed over;
(iii) to facilitate "work from home" to a mother by inserting an enabling provision;
(iv) to make it mandatory in respect of establishment having fifty or more employees, to have the facility of creche either individually or as a shared common facility within such distance as may be prescribed by rules and also to allow four visits to the creche by the woman daily, including the interval for rest allowed to her;
(v) every establishment shall intimate in writing and electronically to every woman at the time of her initial appointment about the benefits available under the Act.
(i) increase the maximum period of maternity benefit from the existing twelve weeks to twenty-six weeks,
in case of women who have less than two surviving children and in other cases, the existing period of twelve weeks maternity benefit shall continue;
(ii) to extend the maternity benefits to a "commissioning mother" and "adopting mother" and they shall be entitled to twelve weeks maternity
benefit from the date the child is handed over;
(iii) to facilitate "work from home" to a mother by inserting an enabling provision;
(iv) to make it mandatory in respect of establishment having fifty or more employees, to have the facility of creche either individually or as a shared common facility within such distance as may be prescribed by rules and also to allow four visits to the creche by the woman daily, including the interval for rest allowed to her;
(v) every establishment shall intimate in writing and electronically to every woman at the time of her initial appointment about the benefits available under the Act.
THE MATERNITY BENEFIT (AMENDMENT) ACT, 2017
NO .6 OF 2017
The amendment extends the period of maternity leave from 12 to 26 weeks. However, this increase in maternity leave does not apply to women with two or more surviving children. Such women will be entitled to 12 weeks of leave.
The government has stated that the amendment extend the period of maternity leave to 26 weeks to ensure maternal care to the child during early childhood. It has also noted that such early care is essential for the growth and development of the child.13 This objective could be defeated if sufficient maternity leave is not given in the case of a third born child. Currently under the 1961 Act, the minimum maternity leave of 12 weeks applies in all cases, regardless of the number of previous children.
NO .6 OF 2017
The amendment extends the period of maternity leave from 12 to 26 weeks. However, this increase in maternity leave does not apply to women with two or more surviving children. Such women will be entitled to 12 weeks of leave.
The government has stated that the amendment extend the period of maternity leave to 26 weeks to ensure maternal care to the child during early childhood. It has also noted that such early care is essential for the growth and development of the child.13 This objective could be defeated if sufficient maternity leave is not given in the case of a third born child. Currently under the 1961 Act, the minimum maternity leave of 12 weeks applies in all cases, regardless of the number of previous children.
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