The legal right of “Maternity Leave”

Introduction

Motherhood in itself is one of the greatest benisons by God.

And during this period, the natural presumption which arises is that the women need to be under intensive care and supervision, especially near the expected day of delivery of the little bundle of joy. This is something which even our government recognises in the form of an act named Maternity Benefits Act 1961.

Aim and Objective of this act was

Maternity protection was provided under various State Acts on subjects and different Central Acts i.e. (1) the Mines Maternity Benefit Act, 1941. (2) The Employees’ State Insurance Act, 1948. There was a substantial mishmash in their provisions related to qualifying conditions, period, rate of benefits etc. The tendered legislation was intended to reduce the imbalance in this respect.

Rights of an expecting mother under the Maternity Benefit Act 1961

Prohibition of work during certain period in pregnancy

  • Employer knowingly about the fact, cannot employ a woman and also women itself cannot work in any kind of establishment for six weeks immediately following the day of delivery, miscarriage, medical termination of pregnancy (sec.4(a), sec4(b).)
  • If a woman employee is working in onerous working conditions or long hours of standing either any way which is likely to interfere in her pregnancy, health, development of foetus or miscarriage, on request made to the employer she is entitled to get an exemption from work for early one month immediately before the period of 6 weeks is to begin before delivery.

 Right to payment of maternity benefits

  • Under this provision whichever women is entitled to benefits, then the employer is liable to pay maternity benefits to her on average daily wage basis from preceding date, actual date of delivery, and post delivery .

Conditions  

> No women are eligible to take benefits until she has worked at least 80 days in an establishment out of 1 year from the preceding date of expected delivery.

> Entitled women will only get maximum up to 26 weeks benefits out of which only 8 weeks are prior to date of expected delivery, if there are already two or more than two children surviving, then the women will be entitled for the benefits up to only 12 weeks, out of which 6 weeks will be prior to expected date of delivery

> If a woman dies then the benefits will be given only till the date of her death and if the women dies during the delivery or just after the delivery the benefits as prescribed will be given for full date to child, in case child also dies during the period the benefits will be given till the date of the death of child.

  • Entitled women under this act are eligible to receive a bonus off ₹1000 from their employer.
  • Wages cannot be deducted on basis of the virtue of work and due to nursing break (sec-13).

Right to take leave/breaks in certain conditions

  • A woman is entitled for a 6 week leave immediately after the miscarriage, termination of the pregnancy due to any reason on showing the medical proof to the employer.
  • A woman is entitled for a 2 week leave immediately after the operation of tubectomy, presenting the proof of the operation to the employer.
  • If there is an illness arising out due to above mentioned situations to the women, then by presenting the proof to the employer, she will be entitled for a leave of 1 month.
  • A woman who has resumed its office can take at least 2 nursing breaks daily of prescribed duration, to look after her child, till the child attains the age of 15 months.

Dismissal during the absence of pregnancy and other provisions.

  • If a woman is absent from work then according to the provision this act, cannot be removed dismissed, discharged by the employer during that absence period.
  • Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.
  • If a woman is deprived from both maternity benefits or the bonus, related to discharge and dismissal can file an appeal to concerned authority.

Creche facility for employees

  • Where there are more than 50 employees in any establishment there must be a creche facility for them.
  • Employer shall allow the women for at least 4 visits to the creche which includes her nursing break.
  • Every institution is bound to intimate (in writing or electronically) to the employee regarding the benefits under this act .

Maternity Benefits (Amendment) Act 2017

However, with the constant evolution of our society, the legislature realised that there was a need to make a few changes in this act, which further initiated the amendment of the Maternity Benefit Act 1961and was titled as Maternity Benefit (Amendment) Bill,2016 which was enforced on 1stApril 2017.

The observation of enhancing of the amendment was given by the

>44th Session of Indian Labour Conference (ILC),

>Ministry of Women and Child Development etc.

They propounded for escalation of the benefits of the maternity leave under “Maternity Benefit Act, 1961”. This recommendation has been iterated again and again in accordance of time and is based on the enjoinder of ILC in association with various quarters, furthermore the deliberations were done during the Tripartite Consultations with stakeholders, which lead to the amendment of the Maternity Benefit Act, 1961.

The salient features of the Maternity Benefit (Amendment) Bill, 2016 are as follows: —

(i)there is an increase in 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)there is a provision 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)  there is a provision to facilitate “work from home” to a mother by inserting an enabling provision;

(iv)there is a provision 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.

Sections Before Amendment 2017 After Amendment 2017
 

Sec 5(3)

 

 

Maximum leave for a entitled women was of 12 weeks i.e. 6 weeks before the delivery and 6 weeks afterthe delivery

 

 

Maximum leave a entitled women gets is around 26 weeks i.e. 8 weeks beforethe delivery and 18 weeks after the delivery

 

Sec 11(a)

 

No creche facility for the entitled women

And 2 nursing breaks only

 

 

Creche facilitywas introduced through amendment and Section 11(a) was inserted which allow total 4 visits in a day to look after the child, which includes the nursing break also

 

 

Sec 5(4)

 

No benefits for the commissioning mother

 

 

Commissioning mother is entitled to the benefits of 12 weeks from the date when she hands over the child to the adopting mother

 

 

Sec5(5)

 

No work from home option were given to the women after delivery

 

 

If the work assigned to a woman is of such a nature which can be done from home, can take the benefit from the employer on which they may mutually agree

 

– Pallavdeep Singh

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