04/11/2017

In a Corrigendum issued by the Ministry of Labour and Employment (“Ministry”) on 3^rd April, 2017, the Ministry has rectified the earlier notification S.O. 1026(E) dated 31^st March, 2017(reported in the trail mail)  stating that Section 4 (1) of the Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”)  will come into effect from 1st July,2017 and not the provision w.r.t the option to work from home [Section 3(5)].

Section 4(1) of the (“Amendment Act”) reads as follows:

(1) Every establishment having fifty or more employees shall have the facility of créche within such distance as may be prescribed, either separately or along with common facilities:

Provided that the employer shall allow four visits a day to the creche by the woman, which shall also include the interval for rest allowed to her.”

Hence, the option to work from home [Section 3(5)] is effective since 1st  April, 2017. The requirement to have the crèche facility will be effective from 1st July, 2017.

Background:

The Indian Labour Conference (“ILC”) in its 44^th, 45^th and 46^th Session had recommended enhancing the maternity leave under the Act from existing 12 weeks to 24 weeks. The Ministry of Women and Child Development and other stakeholders had also insisted in enhancing the maternity benefit under the Act.

Basis the recommendations of the ILC and in the wake of several requests from stakeholders, the Rajya Sabha and the Lok Sabha had passed the Bill.

The Lok Sabha has passed the Maternity Benefit (Amendment) Bill, 2016 on 9th March, 2017. The Bill had already been passed by the Rajya Sabha during the Winter Session on 11th August, 2016. With this, the Bill stands passed in the Parliament.

Highlights of the Amendment Act:

1. Increase in the duration of maternity leave to 26 weeks:

The Amendment Bill increases the maternity leave benefit to a period of 26 weeks. The maternity benefit should not be availed before eight weeks from the date of expected delivery.

Prior to this, woman were entitled to maternity leave benefit of 12 weeks only of which not more than six weeks should precede the date of her expected delivery.

2. Maternity leave of 12 weeks for mother/s who are adopting or commissioning mothers

In terms of the Amendment Bill even a woman who legally adopts a child below the age of 3 months or a commissioning mother will be entitled to maternity benefit for a period of 12 weeks. The 12-week period of maternity benefit will be calculated from the date the child is handed over to the adopting or commissioning mother.

This benefit has been introduced for the first time for adopting and commissioning mother/s.

3. Option to work from home:

After availing the maternity leave benefit, an employer may allow a woman to work from home, if the nature of work assigned to her is such that she may work from home. The terms, conditions and duration for the work from home arrangement would be as per the mutual agreement between the employer and the woman.

The Act does not provide for an option to work from home.

4. Crèche facility:

Upon having 50 or more employees, every establishment is required to have the facility of crèche within such distance as may be prescribed, either separately or along with common facilities. The employer is required to allow four visits a day to the crèche by the woman, which will also include the interval for rest allowed to her.

This is a new requirement. Under the provisions of the Act there is no requirement to provide for a crèche facility on the part of the employer.

5. Awareness about maternity benefits:

Every establishment is required to intimate in writing and electronically to every woman at the time of her initial appointment regarding every benefit available under the Act.

The Act is silent on these aspects.

6. For the first time, the role of a “commissioning mother” has been recognized and defined. A commissioning mother means “a biological mother who uses her egg to create an embryo implanted in any other woman”. Prior to this, the Act did not recognize the role of a commissioning mother.
7. For woman who have two or more surviving children, the maternity benefit will continue to be 12 weeks, which cannot be availed before six weeks from the date of the expected delivery.

Frequently Asked Questions: Maternity Benefits Amendment Act 2017

Recently ministry of labour has amended Maternity Benefits Act by introducing Maternity Benefits (Amendment) Act, 2017. Following changes are made with respect of Maternity benefits of working women in India:

1. Maternity leave increased to 26 weeks from 12 weeks for working women with less than two surviving children
2. Provisions for work from home for nursing mother- (depends on mutual consent from employee and employer)
3. Mandatory provisions for establishments having fifty or more employees to have the facility of crèche.
4. Extension of twelve weeks of maternity benefits to the commissioning mother and the adopting mother from the date the child is handed over.

These new changes to the maternity benefits has been came into force with effect from 01st April, 2017.

Maternity Benefits Act 2017 Frequently Asked Questions:

1. Applicability of the Act to contractual or consultant women employees?

Answer: Since there is no amendment in Sec 2 of the Act, hence the original provision will prevail. The Act is applicable to all women who are employed in any capacity directly or through any agency i.e., either on contractual or as consultant.

2. Whether enhanced maternity benefit, as modified by the Maternity Benefit (Amendment) bill, 2016 can be extended to women who are already under maternity leave at the time of enforcement of this Amendment Act?

Answer: Yes

3. Whether enhanced maternity benefit can be extended to those women who have joined after availing 12 weeks of the maternity leave?

Answer: those women employees who has already availed 12 weeks of maternity leave before enforcement of the Maternity Benefits (amendment) act 2017 i.e., 1st April, 2017 shall not be entitled to avail the extended benefit of the 26 weeks leave.

4. Protection of women in case she is fired by the employer after learning her pregnancy?

Answer: Under section 12 of the Maternity Benefits Act, 1961 it is emphasized that any dismissal or discharge of a women during the pregnancy is unlawful and such employer can be punished under Section 21 of the Act

5. Whether benefits of this Act can be extended to the employed women in the unorganized Sector?

Answer: The Maternity Benefits Act is applicable to all mines, plantations, shops and establishments and factories. Mines, plantations, shop and establishments could be either in organised sector or unorganised sector.

Maternity Leave Increased to 26 weeks

: Frequently Asked Questions: Maternity Benefits Amendment Act 2017

According to the new maternity benefits amendment Act, 2017 women employees will be eligible to get paid maternity leave of 26 weeks. Earlier with effect from 01^st January, 2017 employees who are covered under ESI are eligible for 26 weeks of maternity leave.

On 30^th March, 2017 Our Honourable President Pranab Mukherjee has given assent to the Maternity Benefits (Amendment) Act, 2017 which will increase maternity leave for eligible employees to 26 weeks from existing 12 weeks. This new 182 days of maternity leave will be fully paid by the employer, and all other benefits which is due to the employee shall also be given to the those employees on maternity leave.

The Maternity Benefit (Amendment) Bill was passed by the Rajya Sabha on 11^th August, 2016 and Lok Sabha on March 9th, 2017.

Highlights of the new Maternity Benefit Amendment Act, 2017