The Maternity Benefit (Amendment) Act, 2017 -Analysis

The Maternity Benefit (Amendment) Bill, 2016 received the assent of Lok Sabha on March 9, 2017 with approval already granted by the Rajya Sabha during the Winter Session, the bill is now officially an Act after receiving assent of the President.

The Maternity Benefit (Amendment) Act, 2017 aims at making the life of working mothers much easier with a whole host of benefits and novel provisions. However, the provisions of this Act is not applicable retrospectively. Therefore, women who are already on leave cannot claim the benefits under the new law.

What is Maternity Benefit?

In India, Maternity Benefit refers to the paid leave given to working women after giving birth. In most countries, maternity benefit is a legal obligation of the employer. Such a leave may be paid or unpaid. But in most cases, the law requires the leave to be paid. Maternity benefit, or “maternity leave” as it is more popularly known, can be anywhere between 6 weeks to 30 weeks. This duration further differs from one country to another. Sweden leads the way in providing maternity leave with a leave period of 56 weeks at 80% of the total monthly salary.

What are the Major Changes in Maternity Benefit Law?

The existing Maternity Benefit Act, 1961 grants female employees mandatory paid leave after giving birth. It also allows the mother to avail some part of maternity benefit before the actual delivery as well. The new Act adds some entirely new provisions at some places and also modifies the existing ones to a great extent.

Below is a point-by-point summary of major changes in the new Act.

Eligibility for maternity benefits

Not much has changed when it comes to eligibility. The eligibility requirements remain more or less the same.

  • It applies to every factory, mine and plantation. It also applies to any shop or establishment having 10 or more employees.
  • The woman should have worked for the present employer for at least 80 days during the 12 months before the date of delivery.
  • The Act gives equal status to women who are recruited directly and those who are recruited through an agency.

Period of leave under Maternity Leave

  • The earlier Act provided for a fully paid leave of 12 weeks. The new Act provides for 26 weeks of fully paid leave. But, the period of leave after the second child will continue to be 12 weeks.
  • Under the earlier Act, the maximum period of maternity benefit allowed before the delivery was 6 weeks. The new Act raises it to 8 weeks. But, this time period will also continue to be 6 weeks after the second child.

Commissioning mothers and adopting mothers

The new Act makes some major changes by introducing leaves for mothers having a baby through adoption or surrogacy.

  • A woman having a baby through surrogacy will be known as the Commissioning Mother.
  • Women who adopt a child below 3 months will be known as Adopting Mothers.
    Both Adopting as well as Commissioning Mothers will get 12 weeks of Maternity Leave from the date of handing over of the child.

Working from home

The earlier Act did not have any provision allowing women to work from home.
The new Act allows women to work from home. The only condition is that the nature of work must allow her to do so.

Creche facility

The amendment to the existing Maternity Benefit Act also adds a new facility in the form of creches.

  • Shops or establishments with more than 50 employees must set up or provide a creche facility for children. It would allow working women to be near their children and care for them.
  • The amendment also allows four visits to the crèche per day. But it includes the regular rest intervals within the time period for these visits. Moreover, it is also not clear whether such facility would be chargeable or not.

Other provisions

Employers must notify all women employees of the benefits they are eligible to receive under the Maternity Benefit Act. This notification should be in writing as well as in electronic form.