Hi,
It would be so much help if someone can share the details on Maternity Leave in India. Also, info on compensation, leaves, benefits etc.
Are there are new points included as additional benefit considering current WFH situation?
Please suggest.
-Sandeep
The Maternity Benefit Act,1961
Eligibility
A woman must have been working as an employee in an establishment for a period of at least 80 days in the past 12 months as per Section 5 (2) of the The Maternity Benefit Act, 1961.
Maternity Benefit Payments
● Payment during the leave period is based on the average daily wage for the period of actual absence (Section 5).
● A female worker is entitled to a medical bonus of Rs. 3,500 in addition to the salary as per section 8 of the maternity benefits Act, 1961.
Duration of Maternity Benefit
● The Maternity Benefit Amendment Act has increased the duration of paid maternity leave available for women employees from 12 weeks to 26 weeks as per the provisions of Section 5.
● Under the Maternity Benefit Amendment Act, 2017, this benefit could be availed by women for a period extending up to a maximum of 8 weeks before the expected delivery date and the remaining time can be availed post childbirth.
● For women who are expecting after having 2 children, the duration of paid maternity leave shall be 12 weeks (i.e., 6 weeks pre deliveryand 6 weeks post expected date of delivery).
What are the organizations to which this law will apply?
The Act applies to the following establishment (u/s 2)
● All the factories, mines and plantations. It includes any such establishment which belongs to Government.
● Every shop or establishment in which there were 10 or more employees on any day of the preceding 12 months
Note :This will be subject to the Shops and Establishments Act of the State.
What are the important compliances under the statute?
The compliances and forms are prescribed by state wise maternity benefit rules. We have taken the example of Punjab to illustrate the number of compliances applicable in case of maternity benefit Act to establishment engaged in a particular state.
i. Muster Roll shall be maintained by the employer in Form A as per Section 20 and 28 (2A) read with Rule 3 of Punjab Maternity benefit Rules, 1967
ii. Notice of claim for maternity benefit by the woman employee to the employer in Form B as per Section 6 of the Maternity Benefit Act 1961 read with Rule 4 and Rule 6 of the Punjab Maternity Benefit Rules, 1967.
iii. Proof of pregnancy, delivery of child or miscarriage provided by a medical officer in Form C .as per sections 6(5) and Rule 28(2)e read with Rule 5.
iv. Nursing breaks of twenty (20) minutes, provided that in case the crèche or place where children are left by a woman while on duty is not in the vicinity of the place of work a period up to 15 minutes may be allowed for the purpose of journey to and from crèche or the place as per Section 11 read with Section 28(2)(1) read with Rule 7.
v. The abstract of the provisions of the Act and the Rules shall be exhibited in Form K in a conspicuous place by the employer in every part of the establishment in which women are employed as per Sections 1 and 28(1) read with Rule 15 of the Punjab Maternity Benefit Rules, 1967
vi. The employer shall supply to every woman employed by him at her request free of cost copies of Forms ‘ B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘G’, ‘H’ ,and ‘I’.
vii. Annual Return on or before the 21st day of January in each year in Form ‘L’, ‘M’, ‘N’ and ‘O’ as per Section 28(2)(k) read with rule 16.
viii. If the employer of an establishment to which the Act applies sells, abandons or discontinues the working of the establishment, he shall, within one month of the date of sale or abandonment or four months of the date of discontinuance as the case may be, submit to the Competent Authority a further return in each of the said Forms in respect of the Period between the end of the preceding year and the date of sale, abandonment or discontinuance.
Penalty for non-compliance (Section 21)
1. Offence: Employer failing to pay any amount of maternity benefit to a woman entitled under this Act
Punishment: punishable with imprisonment which shall not be less than three months but which may extend to one year
2. Offence: discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act,
Punishment: punishable with imprisonment which shall not be less than three months but which may extend to one year
3. Offence: In case of employer contravening the provisions of this Act or the rules made thereunder
Punishment: he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two hundred rupees but which may extend to five thousand rupees.
4. Offence: Failure to Display Abstract of Act u/s 19
Punishment: Imprisonment may extend to one year or fine u/s 21(2)
What are the biggest challenges?
● The employer has to provide full wages for the period of maternity leave to the employee. The employer has a statutory mandate u/s 11A of the Act to provide creche facilities in case the number of employees is 50 or more.
● Unlike other countries where the state shares the cost of providing such benefits, in India the cost is to be borne by the employer himself.
● Every woman returning to work post delivery is entitled to two breaks in the course of her day to nurse her newborn until she turns 15 months old. However, these breaks remain unexecuted in most cases.
● Provision of a creche, especially for smaller organizations which lack the financial resources for the same, is a challenge, until there are alternate businesses in the economy to whom this responsibility can be outsourced.
● Although the Equal Remuneration Act prohibits discrimination in remuneration and other terms of employment between men and women, the long duration of maternity leave (26 weeks, and fully paid), applicable for up to 2 children, is a huge deterrent for several organizations in hiring female candidates, as it increases their financial costs significantly. Further, organizations view this requirement, coupled with the POSH Act, as being specifically onerous on them.
What about if Employee is covered in ESIC?
Still employer needs to pay salary to the employee or it will be paid by ESIC during maternity period?
If an employee is covered under ESIC and been enrolled and fulfilled all the necessary requirements, then ESIC takes care of it.
“ESIC provides 100% of average daily wages in cash up to 26 weeks in confinement and 6 week in case of miscarriage, during maternity leave and 12 weeks for commissioning mother and adopting mother.”
What if the Employee is not eligible for ESIC?
Hi Neha,
Last 3 months average salary or minimum wages, whichever is higher… and a medical bonus of Rs. 3500 (if company is not providing pre & post natal expense)
Is this applicable to contract and consultant employees also? pl clarify
Hi Suma,
Several High Courts have reiterated that maternity benefits are applicable to contract employees as well.
Where an establishment employs a woman as a direct or indirect employee or engage for any assignment or consultation, and such woman has worked for the minimum period as prescribed under the Maternity Benefits Act, then the establishment has to comply and provide the benefits as specified.
Moreover, if the woman’s conception has taken place during the contractual period and the contract terminates / ceases, yet she is entitled for the benefits thereafter.
Some bookmarks for quick reference:
Regards,
Bhuvana Anand