In India, maternity benefits to the employed pregnant woman (hereinafter claimant) are governed under Maternity Benefit Act, 1961 (hereinafter MBA) and Employees’ State Insurance Corporation Act, 1948 (hereinafter ESIC).
MBA is enacted –
to regulate the employment of women in certain establishments for certain periods before and after childbirth and
to provide for maternity benefit and certain other benefits.
To whom does MBA apply
- MBA is applicable to all establishments which include factories, plantations, mines belonging to Government.
-To every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances.
Any shop or establishment that falls within the purview of laws for shops and establishments in any State wherein ten or more persons are employed or were employed within the preceding twelve months.
To women who cannot claim under ESIC for the reason of her income being above INR 3000/- per month.
To whom MBA does not apply
This law is not applicable to those women to which the ESIC is applicable
What are the Maternity Benefits
It is the benefit of payment that a woman during her pregnancy can claim for her pre-natal and post-natal absence from work which will be considered as paid maternity leave.
The payment is calculated at an average daily wage which is equivalent to the period of three calendar months during her absence i.e. maternity leave which includes her pre-natal period that immediately precedes her day of delivery, the day of delivery and the post-natal period permissible under MBA.
This benefit can be claimed by the woman who should have worked not less than 80 days in the preceding twelve months from her expected date of delivery which also includes women employed in casual or muster roll basis on daily wages. This benefit is not applicable to a woman who has immigrated to Assam or was pregnant during such immigration.
In the event of woman’s death during the delivery or during the period immediately following the delivery wherein the child survives, the deceased woman is entitled to full maternity benefit for such period to the surviving child. Hence the employer is liable to pay the full maternity benefit.
In the event of a child’s death at the time of delivery or any day after the delivery, the benefit has to be calculated till such period including the date of death of the child.
If the employer is not providing free medical care then the employer has to pay a sum of INR 3,500/- to the claimant. This is w.e.f. 19.12.2011.
Procedure to be adopted by the claimant
Inform her employer in writing the period of leave and benefits to be availed as prescribed by the establishment; (if the notice cannot be given before delivery, the claimant can notify the employer at the earliest possible after delivery; failure to notify employer does not disentitle the claimant from the benefits),
Declare that she will not undertake any other employment during such period,
Provide medical records as proof that claimant has delivered the child.
Do’s & Don’ts to employer
The employer shall not engage the claimant in any heavy strenuous work and shall engage the claimant only in light work for ten weeks before the date of expected delivery.
The employer shall NOT, during such period of leave/absence of the claimant,
- Reduce the daily wages of the claimant for the reasons for her absence or allocation of less stressful work,
- Discharge or dismiss the claimant for the reason of her absence, or
- Serve any notice of dismissal which will expire during her period of absence
- However, the employer can do the above and can also deprive the maternity benefits in the event of gross misconduct committed by the claimant and such discharge/dismissal notice shall be duly served to the claimant stating reasons; the claimant is entitled to appeal to the appropriate authorities within sixty days from the date of receipt of such notice for relief.
The unlawful discharge, dismissal of claimant and non-payment of benefits by the employer attract imprisonment not less than three months up to one year or fine not less than INR 2000/- up to INR 5000/- or both.
2017 Amendment in MBA with enhanced benefits – an aerial view
Nature of leave availed by claimant
As per 2017 Amendment
Pregnancy & Delivery
Leave not exceeding six weeks preceding delivery
Applicable for first two children.
In case of a third child (Leave not exceeding six weeks preceding delivery)
Increased from twelve weeks to twenty-six weeks wherein the pre-natal leave shall not exceed more than eight weeks preceding delivery.
Only twelve weeks in total can be availed.
Miscarriage or medical termination of pregnancy
Remains the same, no changes
Can claim up to six weeks leave with maternity benefit immediately from the date of such miscarriage or termination of pregnancy as the case may be
Tubectomy Operation
Remains the same, no changes
Can claim up to two weeks of leave with maternity benefit immediately from the date of operation
Illness during pregnancy, delivery, pre-matured delivery etc.
Remains the same, no changes
Can claim up to four weeks of leave with maternity benefit
Nursing breaks
Remains the same, no changes
In addition to the interval of rest allowed the claimant can take two breaks to nurse the child till the child attains the age of fifteen months
Adoptive mothers
For child below the age of three months
Can avail twelve weeks leave with benefits
Commissioning mother or surrogate mother
From the date the child is handed over to her or otherwise as prescribed
Can avail twelve weeks leave with benefits
Creche Facility
An establishment with 30 women employee or 50 employees in general whichever is the less
Provide creche within 500 meters proximity and allow four visits during working hours
Work from home option
Can be availed after the expiry of twenty-six weeks – the employer and claimant to decide the terms mutually
Educate women employee about the benefits
Employer to mandatorily educate the women employee about the benefits available from the date of their appointment
