LEGAL UPDATES



The Maternity Benefit (Amendment) Act, 2017 Download as PDF

01-05-2017

Pursuant to the Official Gazette Notification of the Ministry of Labour and Employment, Government of India (the ‘Ministry’), the Maternity Benefit (Amendment) Act, 2017 (the ‘Amendment Act’) has come into force from April 1, 2017, with the only exception being the provision relating to ‘work from home’, which will come into effect from July 1, 2017. The Amendment Act is aimed at widening the scope of maternity benefits previously available to women under the Maternity Benefit Act, 1961 (the ‘Act’), by enhancing paid maternity leave and related benefits for women employed in any shop or commercial establishment which employs 10 or more persons, or any factory, mine or plantation.

Key highlights of the Amendment Act

  • The paid maternity leave has been enhanced to 26 weeks from the previous 12 weeks for up to two surviving children. However, if the woman employee has more than 2 surviving children, she will only be entitled to 12 weeks paid maternity leave.
  • Previously a woman employee could not take more than 6 weeks of leave preceding her due date. This has now been extended to 8 weeks. However, in case of more than 2 surviving children, the woman employee will be entitled to 6 weeks leave preceding her expected delivery date.
  • A ‘commissioning mother’ and a woman employee adopting a child below 3 months have been allowed paid maternity leave of 12 weeks. The Amendment Act defines ‘commissioning mother’ to mean a biological mother who uses her egg to create an embryo implanted in a surrogate.
  • All establishments having 50 or more employees are required to provide a crèche facility within a prescribed distance, either separately or along with common facilities. A woman employee covered under the Act can visit her child 4 times a day at such a crèche, including during any rest interval provided to the woman employee.
  • The concept of ‘work from home’ has been formally introduced in the Amendment Act. However, ‘work from home’ has not been mandated and the terms for effectuating the same have been left on the nature of work and mutual agreement between the employer and the woman employee.
  • It is now mandatory that employer intimates regarding the maternity benefits to a woman employee at the time of her initial employment. Such information needs to be intimated in writing and through the electronic mode.

Clarification on the Amendment Act

The Ministry in consultation with the Chief Labour Commissioner (Central) issued certain clarifications relating to the revised provisions of the Act on April 12, 2017 (the “Clarification”). In the Clarification, the Ministry has clarified that the enhanced maternity benefits under the Amendment Act have to be provided to women who are on maternity leave as of April 1, 2017, but not to women who have already joined back work on or before March 31, 2017. It has also been clarified that the Amendment Act is applicable to women employees irrespective of whether they are on contract or working in the capacity of a consultant.

Conclusion

Overall, the enhanced maternity leave provisions are a laudable effort by the government to address the insufficiency of the existing maternity benefits under the Act. The Amendment Act will improve the work-life balance of approximately 1.8 million female workforce in the organized sector and have an overall positive impact on women’s participation in labour force.

However, while the Government has taken positive steps to encourage continuity of work of women post motherhood, the Amendment Act needs further clarity to allow implementation of the benefits introduced. For instance, will any monetary contribution be payable by an employee for availing the crèche facility, the distance from the work place within which the crèche facility has to be provided and the age limit of the children for whom such facility has to be provided, thus making immediate compliance of the Amendment Act practically not feasible. However, we hope that the Government soon prescribes rules under the Act, which will paint a clearer picture on these aspects.

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Last Updated on 25th January 2019

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