Maternity Benefits for Indian Women: Changes in the Maternity Benefit Law from 1961 to 2017
On the recommendations of the 44th, 45th and 46th sessions of the Indian Labor Conference convened by the Ministry of Labor and Employment, as well as in line with recommendations made by the Ministry of Women and Child Development, the Maternity Benefit Act, 1961 was amended and received approval from both houses. It received Presidential assent on 3rd April 2017. The bill paves the way for the ratification of International Labor Convention no. 183 that provides for 14 weeks of maternity leave benefit to women.
The changes made to the Maternity Benefits Act, 1961 have been made to encourage women’s participation in labour force and to improve the work-life balance of women employed in the organized sector. The bill also allows for healthier children as working mothers can now take care of their infants in their most important and formative months.
India now ranks third on the list of countries with most maternity leave (26 weeks), after Canada (50 weeks) and Norway (44 weeks).
The Maternity Benefits Act, 1961
The Maternity Benefits Act, 1961 was passed to regulate the employment of women in the organized sector for certain periods before and after child-birth and provide for monetary maternity benefits. Its main aim was to prohibit expectant mothers from partaking in any work which was likely to interfere with pregnancy and normal development of the foetus. The act also provided for every woman to be entitled to the payment of maternity relief at the rate of the average daily wage for the period of her absence. Salient features of the bill are:
1. 12 weeks of leave from employment for expectant mothers
The act entitles expectant mothers to 12 weeks of leave from employment, of which not more than six weeks should precede the date of her expected delivery.
The act prohibits establishments from employing women during the six weeks immediately following the day of her delivery. The act also prohibits women from working in any establishment during the six weeks following the day of her delivery. No employee can be required by her employer to partake in any work which is of an arduous nature or which involves long hours of standing, or any work which is likely to interfere with pregnancy or the normal development of the foetus from a period of one month immediately preceding the date of her expected delivery.
2. Right to payment of maternity benefits
The Act also entitles women to receive maternity benefit at the rate of the average daily wage for up to 12 weeks, out of which not more than 6 weeks shall precede the date of her expected delivery. However, no women shall be entitled to the monetary benefit unless she has worked under the employer, from whom she claims maternity relief, for a period of fewer than 80 days in the 12 months preceding the date of her expected delivery.
In case a woman entitled to maternity benefit dies before receiving the amount, the act allows for payment to be diverted to the person nominated by the woman.
3. Protection for women suffering from Miscarriage, undergoing Medical Termination of Pregnancy, suffering from illness arising out of pregnancy, delivery, premature birth of the child, or miscarriage.
The act also provides adequate coverage to women who do not have a successful delivery, or suffer from post-partum illness.
In a case of miscarriage or medical termination of pregnancy, the act entitles women to leave with wages at the rate of maternity benefits, for a period of 6 weeks following the day of termination of her pregnancy.
In a case of any post-partum illness, a woman is entitled, in addition to the period of absence allowed to her under the maternity benefit, to leave with wages at the rate of maternity benefit for a maximum of one month.
The Maternity Benefits (Amendment) , 2017
The Maternity Benefits (Amendment) Bill, 2017 received the President’s assent on the 3rd April 2017 after it was passed by the Rajya Sabha in August 2016 and the Lok Sabha in March 2017. As mentioned earlier, the amendment comes in the wake of recommendations from the ILO and Ministry for Women and Child Development as well as many stakeholders who felt that the 55-year-old needed changes to effectively protect the interests of today’s working women. The landmark Bill is set to benefit more than 30 lakh women employed in the organized sector.
Besides amendments to statutes of the original act, the bill also now entitles adopting mothers as well as commissioning mothers to maternity leave and benefits. Additionally, it makes it mandatory for establishments to provide a creche facility within a prescribed distance.
In brief, the important highlights of the bill are:
1.Increase in maternity leave duration to 26 weeks
The Amendment Bill increases the maternity leave benefit from 12 weeks to a period of 26 weeks, of which not more than 8 weeks should precede the date of expected delivery.
It should be noticed that the 26 weeks of maternity leave are allowed only for the first two pregnancies. For the third and fourth child, the paid leave entitlement will be 12 weeks and 6 weeks respectively. Such terms are introduced to the bill to ensure that the law remains equitable on the part of employers as well.
2. Maternity leave of 12 weeks for adopting and commissioning mothers
A new inclusion to the act, a woman who legally adopts a child below the age of 3 months or a commissioning mother (Mothers who have children through surrogacy) will now be entitled to maternity benefit for a period of 12 weeks.
3. Option to work from home
The bill has a provision under which an employer can permit a woman to work from home, provided the nature of the work permits her to do so, even after the availing of maternity leave benefit. The terms and conditions, as well as the duration of the arrangement, must be as per an agreement between the employer and woman. The provision ensures that a woman’s professional growth is not curbed due to the burden of taking care of a child.
4. Creche facility mandatory for establishments with 50 or more employees
Establishments having 50 or more employees are now required to have the facility of a creche or a children’s day car within such distance as may be prescribed, either individually or as a common facility. An employer is then required to allow four visits a day to the creche by the woman, which also includes the interval for rest allowed to her. The provisions allow women to take care of their children even after the termination of the maternity leave and a return to employment.
5. Awareness about maternity benefits
Every establishment is required to intimate in writing as well as electronically to every woman at the time of her appointment, regarding every benefit available under the Act.
The bill came into effect on April 1, 2017. However, the provision for creche facilities shall be enforced from July 1, 2017. Women employees who have already availed 12 weeks of maternity leave before the enforcement of the Act shall not be entitled to the extended benefit of 26 weeks leave. Women who are already on maternity leave on the date of enforcement can avail the extended benefits of enhanced maternity leave.
Benefits of the Amendment Bill and its relevant in today’s time:
The amendments to the Maternity Benefit Act, 1961 come to keep it up to date with today’s times, where women feel obliged to exit the profession during their pregnancy due to the multifaceted nature of work and difficulties in returning to work after a substantial gap. History bears testimony to the fact that pregnant women have been treated as a liability. This bill allows women to retain and return to their positions without much struggle and compromises to their new-born’s health and changes the view that maternity is a disability.
In my opinion, the bill becomes a gender catalyst and aims to ensure gender balance in the workplace. It is commonly observed that lately, women have a lower hierarchical ceiling in the organized sector, that is, they receive fewer and weaker promotions, as it is assumed that they will leave the profession once they start a family. This leads to most professions being male-dominated (especially the higher positions). By allowing for women to not only care for their newborn, but also stay in touch with their professions is a great encouragement for women to push for higher, more prestigious positions.
It can be further argued that the bill wishes to inculcate a progressive definition of motherhood – one which does not involve the woman giving away her professional career to take care of her child. It also becomes more purposive, bringing under the Maternity Benefits Act’s ambit, adopting and commissioning mothers who received no benefits despite facing the same hardships as expectant mothers. We must keep in mind that the objective of this act is to provide comfort and convenience to working mothers, and the amendment ensures that this is achieved in the current times.
The inclusion of mandatory creche facilities facilitates the woman’s re-joining process as she is no longer worried about leaving her newborn, either alone at home, or burdening someone else to take care of the child while she is away at work. This may be seen as a way through which the mother can continue to foster her child, as well as focus on her professional engagements.
Lastly, it can be argued that the amendment also ensures such an arrangement is equitable to establishments in the organized sector. While the original act provided for benefits for working mothers irrespective of how many children she chooses to bear, the amended bill reduces the benefits after the second child and ensures that establishments are not burdened by constant maternity payments. The addition of this clause can also be seen as an attempt by the government to push for more informed choices in terms of family planning given the subsequent drop in leaves and benefits after the second child.
While the bill has received criticisms for not including women from the unorganized sector, who account for 90% of the female workforce in the country, and for not keeping in mind the economic scenario of India before creating such reform, I believe that the Maternity Benefits (Amendment) Bill, 2017 is a welcome addition, and will encourage more women to join the organized sector, owing to the improved work-life balance.
[1] The average daily wage would be the average of wages paid to the woman for the days on which she has worked during the period of three calendar months preceding the date from which she absents herself on account of maternity.
[2] Economic Survey of India (Various Issues)
[3] The 12-week period will be calculated from the date the child is handed over to the adopting or commissioning mother.
Author: This post has been submitted by Karan Arora, as part of his assignment with Ungender Insights. Karan Arora is currently a student of Jindal Global Law School, Sonipat.
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