Know your Maternity Law

What is the Maternity Leave?

Maternity leave is a paid leave from work which benefits women employees as they can take care of their newly born, and at the same time retain their jobs.

The first Maternity Leave Act was established back in 1961 and was called The Maternity Leave Benefit Act 1961 and it ensured that women employees get a paid leave of minimum 12 weeks post-delivery and was applicable to establishments comprising of ten or more employees.

In 2017, The Maternity leave (Amendment) Bill 2017 was passed to liberalize the maternity rights in India even more. Some necessary amendments made in the Act were:

1. Applicability of The Maternity leave Act:

It was made applicable to bring almost all the factories, corporates, mines, plantations, shops and government establishments.

2. Eligibility Criteria

The woman employee applying under this Act should have completed working for a minimum of 80 days in the current establishment in the past 12 months. 

3. Payment

Paid leave is calculated for the period of absence which is based on the average daily wage.

4. Extension of maternity period

The Amendment has extended the earlier 12 weeks’ leave to 26 weeks. The pregnant employee can divide the leave as post and pre-delivery. The employee can opt for 8 weeks of leave before the delivery and remaining post-childbirth. For women expecting their third child, the maternity leave allotted is 12 weeks. 

5. Maternity leave Law for adoptive mothers

The law states a 12 weeks leave for the adopting mother and this leave starts from the day of adoption and is applicable for the baby below three months of age.

6. Maternity law for commissioning mothers in India

The technology has brought relief to many families who were not able to conceive naturally. The maternity leave law provides 12 week leave to the biological mother who imparts her egg to the surrogate mother.

7. Tubectomy

In the case of tubectomy, two weeks’ leave can be provided to woman on the production of the prescribed papers immediately from the date of the tubectomy operation.

8. Critical illness post-maternity

The Maternity leave Amendment Bill, 2017 allows a benefit of one month for women who are suffering from critical circumstances such as pre-mature delivery, miscarriage & medical termination of pregnancy.

9. Government civil employees

Female civil employees benefit from a paid leave of 180 days for the first two born children.

10. Private sector employees

Private sector female employees have to ensure maternity leave policies with their HR team. These provisions vary for different companies.

Benefits under new Amendment:

• The maternity leave payment is calculated on the basis of rate of average daily wage for the period of absence.
• A medical bonus of Rs. 3500 is entitled in addition to paid leave who is already a mother of two. 
• Under the National Food Security Act 2013, pregnant women and lactating mothers can further draw an additional benefit of Rs. 6000/-.

Norms under The Maternity Leave Act:

• The employer should not give a pregnant employee difficult tasks, ten weeks before the delivery, such that it might affect both mother and child. 
• The employer should ensure the health and safety of the female employee and mandates that she should not be involved in any type of work six weeks following the delivery or miscarriage.
• The Act further states that the employer cannot dismiss or discharge a female employer during the period of maternity leave.
• In an organisation of 50 plus employees, a Crèche facility is to be provided by the employer which permits the female employee to visit the crèche four times during the regular working hours, including her regular rest intervals.
• When the female employee resumes the work after maternity leave, she can avail of the crèche facilities. The penalty to an employer for floutance of the Act is a fine of Rs. 5000/- or imprisonment extending up to a year or with both.

Employers’ Dilemma

• In India, maternity leave cost has to be borne by the employers, whereas, in other countries, government and employer share the cost.
• Training the temporary staff adds to the expense for the employer.
• The setting up of a crèche is additional infrastructural investment for the employer in addition to recruit a trained staff handling the crèche.