Theme: Maternity Benefit

Maternity benefit is the amount an employer pays a woman when she is going to have a child. It helps protect the rights of women employees during pregnancy and provides them with paid leave so that they can take pregnancy leave without negative consequences.

 

You can seek maternity benefits if you are a woman and if you are:

• Pregnant for the first time
• Pregnant with one child or 2 children already
• Adopting a child below the age of 3 months ^{(( Section 5(4), The Maternity Benefit (Amendment) Act, 2017.))}
• Having a child through a surrogate ^{(( Section5(4), The Maternity Benefit (Amendment) Act, 2017.))}
• Recovering from a miscarriage, abortion or tubectomy operation

You can enjoy maternity benefits such as taking a period of leave and getting paid during this period. However, you can only enjoy such benefits if you have worked for an employer for a minimum of 80 days in the last 12 months before your delivery. ^{(( Section 5(2), The Maternity Benefit Act, 1961.))} This applies to all women who are pregnant, irrespective of age or marital status. However, this shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. ^{(( Proviso, Section 5(2), The Maternity Benefit Act, 1961))}

Currently, under the law, only women can seek maternity benefits. Men or persons who identify with other genders do not have an option to seek the benefits. However, you can check with the internal policy of your organization as it may provide for gender-neutral pregnancy leaves or paternity leaves.

Types of employment

Regular employee

Maternity benefit does not differentiate between permanent, temporary and contractual employees, so denying the benefit to any type of worker is against the law. ^{(( Indu Joshi Vs. State of Uttarakhand and Ors. 2013 (139) FLR 439; Rachna Chaurasiya Vs. State of U.P. and Ors. 2017 (6) ALJ 454))}

Casual/ Muster Roll employee

Courts have held that even women engaged on a casual basis, or on a muster roll basis^{(( Swati and Ors. Vs. Government of NCT of Delhi and Ors. 2016 (1) SLJ 201 (CAT)))} on daily wages, are entitled to get the benefit of maternity leave at par with regular employees. ^{(( Anju Sharma Vs. Lt. Governor, NCT of Delhi and Ors. In The Central Administrative Tribunal Principal Bench At New Delhi O.A. No. 543/2011; Municipal Corporation of Delhi Vs Female Workers (Muster Roll) and Ors. AIR 2000 SC 1274; Geeta Sharma Vs. Union of India RLW2001(4) Raj 637.))}

Contractual employee

Maternity leave benefits are also accorded to contractual employees. ^{(( Priyanka Gujarkar Shrivastava Vs. Registrar General and Ors. 2017 Lab IC 1646; Shanti Mehra Vs. State of Uttarakhand and Ors. 2017(2) UC 1438; State of H.P. Vs. Sudesh Kumari 2015 (145) FLR 516.))} Further, contractual employees are also entitled to 26 weeks of maternity leave. ^{(( Jeslin Jose Vs. Cochin Port Trust 2019 (2) KHC 797))} However, a woman cannot avail maternity benefits after the expiry of the contractual period. ^{(( Bharti Gupta Vs. Respondent: Rail India Technical and Economical Services Ltd. (Rites) and Ors. 123 (2005) DLT 138; Kavita Yadav Vs. The Secretary, Ministry of Health and Family Welfare Department W.P. (C.) No. 8884/2019 DHC.))}

You are entitled to leave from work when you are having a child. However, this differs based on certain circumstances:

If you are pregnant for the first time or you already have one child

You can claim a maximum of 26 weeks of leave if you are pregnant for the first time or if you already have one child. However, you cannot take more than 8 weeks of leave before the expected delivery date. ^{(( Proviso, Section 5(3), The Maternity Benefit (Amendment) Act, 2017.))}

If you already have 2 children

If you have 2 or more surviving children, then you can take 12 weeks of leave. For example, if a woman has 2 children already and is pregnant with her 3rd child, then she can take only 12 weeks of maternity leave. However,  only 6 weeks, can be taken before delivery. ^{(( Proviso, Section 5(3), The Maternity Benefit (Amendment) Act, 2017.))}

Adopting a child/ Commissioning mother

A woman who legally adopts a child below the age of three months, or a commissioning mother, is entitled to maternity leave. The period of leave is for 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother. ^{(( Section 5(4), The Maternity Benefit (Amendment) Act, 2017.))}
A commissioning mother is also entitled to all the benefits an employee could have post the delivery of the child, except the leave involving health of mother after delivery. ^{(( P. Geetha Vs.The Kerala Livestock Development Board Ltd. 2015 (1) KHC 165; Sadhna Agrawal Vs. State of Chhattisgarh and Ors. 2017 Lab IC 617.))}

If you are suffering from illness arising out of pregnancy, delivery, premature birth of child, miscarriage, abortion or tubectomy operation, you will be entitled to an additional month of leave with wages at the rate of maternity benefit. ^{(( Section 10, The Maternity Benefit Act, 1961.)} You will have to submit proof of the illness for the same.

Employers have to pay women for the period during which they are absent from work as a result of their pregnancy. This is known as a maternity benefit. ^{(( Section 2(h), The Maternity Benefit Act, 1961.))}

• An employer has to pay you for a period starting from the day of your delivery to six weeks afterwards. This period also includes the day of the  delivery. ^{(( Section 5(1), The Maternity Benefit Act, 1961.))}
• However, you can only enjoy such benefits if you have worked for that employer for a minimum of 80 days in the last 12 months before your delivery. ^{(( Section 5(2), The Maternity Benefit Act, 1961.))}

Calculating Payment Amount/Average Wages

During this period of pregnancy, employers have to pay you the maternity benefit in the form of an average daily wage. ^{(( Section 5(1), The Maternity Benefit Act, 1961.))} The calculation for the average daily wage is based upon the average of your wages for the 3 months before the date on which you start your pregnancy leave. The following  aspects are considered while calculating wages:

• To calculate the number of days a woman has worked in the 3 months before the pregnancy leave, the employer will also consider the days for which the woman was fired or laid-off or on a holiday with wages.
• If the calculation given above is not possible, the wage amount is considered to be 10 rupees per day. Even if calculation is possible, the higher amount out of the two is paid to the woman. ^{(( Explanation, Section 5(1), The Maternity Benefit Act, 1961.))}

Medical Bonus

If you did not take time off before your delivery and your employer does not provide free post-natal care,  you are also entitled to receive a medical bonus of 1000 rupees from your employer. ^{(( Section 8(1), The Maternity Benefit Act, 1961.))}

For organisations under government or local authority control, employers are people appointed by the government or the local authorities to supervise and control the employees of an organization. These employers have ultimate control over the establishment.¹ If no person is appointed as the employer, then the head of the department or the chief executive officer of the local authority will be considered to be the employer. In all other cases, such as privately-run organisations, whoever has the ultimate control over the organisation’s affairs or a manager, managing director, etc. are also considered employers.

Duties of employers

Employers have the following duties:

• At the time of joining the employment, employers have to inform women  about every maternity benefit available under the Maternity Benefit Act and within the organization.²
  The employer cannot knowingly employ a woman during the 6 weeks following the date of her delivery, abortion or miscarriage.³
  The maternity leave starts  6 weeks before the delivery date of the woman. However, if she requests, it can start  one month before this period. During this period, the employer cannot give her arduous work, including any work that requires hours of standing or work that can negatively affect her health.⁴
• Employers cannot dismiss women from their job during the maternity leave period.
• Employers cannot deny payment of the maternity benefit to a woman eligible for such a benefit.

Punishments for Employers

Dismissal or non-payment of benefit

If an employer does not pay you the maternity benefit amount or dismisses you during your maternity leave, then he can be punished with imprisonment for up to one year and with a fine of up to Rupees Five Thousand.⁵

Punishment for any other violation

If your employer violates the law (The Maternity Benefit Act), then the punishment is imprisonment of up to one year, and/or a fine of up to Rupees Five Thousand.

Obstructing Inspectors

If anyone, including the employer, obstructs the Inspector from doing his duty then they will be punished with imprisonment of up to one year, and/or  a fine of up to Rupees Five Thousand.⁶

If you are facing trouble while seeking the benefit or for any other maternity-related reason, you have a right to file a complaint. Read more here.

1. Section 3(d), The Maternity Benefit Act, 1961. [↩]
2. The Maternity Benefit (Amendment) Act, 2017, Section 11(2). [↩]
3. Section 4(1), The Maternity Benefit Act, 1961. [↩]
4. Section 4(3) and Section 4(4), The Maternity Benefit Act, 1961. [↩]
5. Section 21(1), The Maternity Benefit Act, 1961. [↩]
6. Section 22, The Maternity Benefit Act, 1961. [↩]

The employer must pay you your maternity benefit before your delivery. ^{(( Section 6(5), The Maternity Benefit Act, 1961.))} For this, you have to give your employer a written notice to state your claim to the maternity benefit. Given below  is a checklist of information that should be in the notice:

• You have to state that you will not work for any other employer during the time for which  you have claimed the maternity benefit. ^{(( Section 6(1), The Maternity Benefit Act, 1961.))}
• You can also nominate  another person who can receive the payment on your behalf. ^{(( Section 6(1), The Maternity Benefit Act, 1961.))}
• In case you are pregnant, the notice should state the date from which you will be absent from work. This cannot be earlier than 6 weeks before the date of your expected delivery. ^{(( Section 6(2), The Maternity Benefit Act, 1961))}
• You are required to submit proof that you are pregnant.

Claiming Benefit After Delivery

Subsequently, you can claim the maternity benefit for the period after your delivery within 48 hours of submitting proof that you have delivered the child. ¹ If you have not given the notice when you were pregnant, you can give the notice as soon as possible after your delivery. ^{(( Section 6(3), The Maternity Benefit Act, 1961))}  However, just because you haven’t given a notice does not mean that you will not be able to get maternity benefits. You can make an application to the inspector and he can order that the payment be made. ^{(( Section 6(6), The Maternity Benefit Act, 1961.))}

Going Back to Work

If you continue to go to work after you have been allowed to take maternity leave by your employer, then you shall have to forfeit your claim to the maternity benefit for such period. ^{(( Section 18, The Maternity Benefit Act, 1961.))}

The Maternity Benefit Act will apply to you if you work in any of the following workplaces:

• Any establishment such as a factory, mine or plantation, including government establishments ^{(( Section 2(1)(a), The Maternity Benefit Act, 1961.))}
• Establishments employing people for the exhibition of equestrian, acrobatic and other performances ^{(( Section 2(1)(a), The Maternity Benefit Act, 1961.))}
• Shops or establishments employing  10 or more people and which is covered within the laws of the state ^{(( Section 2(1)(b), The Maternity Benefit Act, 1961.))}
• Any other establishment or class of establishments, industrial, commercial, agricultural units etc. that the state may notify. ^{(( Proviso, Section 2(1),The Maternity Benefit Act, 1961.))}

However, workplaces covered under the Employees’ State Insurance Act, 1948, will have to follow the maternity benefits given under this law. ^{(( Section 2(2), The Maternity Benefit Act, 1961))} Read more here.

Working From Home

When your maternity leave is over and the nature of your work allows you to work from home, you can ask your employer to allow you to work from home. ^{(( Section 5(5), The Maternity Benefit Act, 1961.))} This is based on you and your employer mutually agreeing on the conditions of your employment from home.

You cannot be dismissed or fired by your employer during or due to your maternity leave. ^{(( Section 12(1), The Maternity Benefit Act, 1961.))} Keep in mind:

• During your maternity leave, your employer cannot change your condition of work to your disadvantage. For example, your employer cannot demote you at work just because you took maternity leave.
• If you are fired or dismissed during your pregnancy, you are eligible to receive maternity benefit or medical bonus.
• Your employer cannot cut your salary based on the fact that you requested and did non-strenuous work during your pregnancy. Even for reasons such as taking nursing breaks, your employer cannot cut your salary. ^{(( Section 13(b), The Maternity Benefit Act, 1961.))}

You can only be dismissed or dis-entitled to your maternity benefit in cases of gross misconduct. ^{(( Proviso, Section 12(2)(a), The Maternity Benefit Act, 1961.))} Gross misconduct means deliberately destroying an  employers’ property, assaulting other employees, fraud concerning the employers’ work, etc. ^{(( Section 8.The Maternity Benefit (Mines and Circus) Rules, 1963))}

An employer has the duty to pay maternity benefit even in case the woman dies as a result of the pregnancy. If the woman dies before receiving the maternity benefit or amount, the employer shall pay the amount to the person nominated by the woman in the notice given by her.  ^{(( Section 7, The Maternity Benefit Act, 1961.))} The amount payable depends on the following:

Other than the maternity pay and leave, women are entitled to other benefits. These benefits such as nursing breaks and creche facilities allow women to make an easier transition back into work after their maternity leave.

Nursing breaks

If you return to work after your delivery, you can take 2 breaks of 15 minutes each daily ^{(( Section 6, The Maternity Benefit Act, 1961.))}. You can nurse your child and take nursing breaks till the child is 15 months old. ^{(( Section 11, The Maternity Benefit Act, 1961))}

Creche Facility

Every establishment having fifty or more employees shall have a creche facility. ^{(( Section 11A, The Maternity Benefit (Amendment) Act, 2017))} You can visit the creche 4 times in a day as per the law. ^{(( Section 6, The Maternity Benefit (Mines and Circus) Rules, 1963.))} You can take an extra time of 5-15 minutes. This includes the time to and from the:

• Creche (a nursery where babies and young children are cared for during the working day) or
• Any other place where the children are being taken care of.

The Ministry of Women and Child Development issued guidelines for setting up and running creches, which prescribe standards that creches should adhere to. ^{(( National Minimum Guidelines for Setting Up and Running Crèches under Maternity Benefit Act 2017, https://wcd.nic.in/sites/default/files/National%20Minimum%20Guidelines.pdf))} The guidelines state that there should be one crèche for every 30 children, which should be extended to any employee’s child between the age group of 6 months to 6 years. The location of the crèche facility should be at the workplace, or within 500 meters from the workplace.

If your employer has withheld any payment or maternity benefit from you or has dismissed you on account of your maternity leave, then you can approach the following authorities:

Inspector

You can approach the inspector to make a complaint. The inspector may make an inquiry on his own or after receiving a complaint, and pass orders based on the case. ^{(( Section 17(1) and Section 17(2), The Maternity Benefit Act, 1961.))} Commonly, the inspectors appointed under this law are labour regional commissioners. To know which officers have been designated as inspectors, click here.

You can appeal the decision of the inspector to the Labour Court. You should file the appeal within 30 days from the date on which the decision is communicated to you. ^{(( Section 17(3), The Maternity Benefit Act, 1961.))} However, if you do not file an appeal then the decision of the inspector is final. ^{(( Section 17(4), The Maternity Benefit Act, 1961.))} You can request the advice of a lawyer for the same.

National and State Commissions for Women

The National Commission for Women (NCW) is a national-level government organization that is empowered to investigate complaints related to issues faced by women. The NCW will help you by:

• Monitoring and expediting the investigations being led by the police.
• Providing counselling or a hearing before the NCW. This is done to resolve disputes between the two parties.

You can get in touch with them by either calling the helpline number 1091, or sending an email to ncw@nic.in, or filing an online complaint. Further, you can also approach the State Commission of Women situated in your state, and ask them for help.

Proof of a pregnancy, miscarriage, abortion or tubectomy operation is necessary if you want to claim maternity benefits. You can prove the fact that you are pregnant, had a miscarriage, abortion, tubectomy operation or suffered an illness arising out of these procedures if you produce a certificate to that effect from any of the following^{(( Section 4, The Maternity Benefit (Mines and Circus) Rules, 1963))}:

• Registered Medical Practitioner
• A Medical Officer of a regional hospital or a dispensary set up under the Coal Mines Welfare Organisation
• Medical Officer of a Mines Board where the mine is situated.

The fact that a woman has been confined can also be proved by the production of a certified extract from a birth register or a certificate signed by a registered midwife. Additionally, a certificate signed by a registered midwife also proves miscarriage. The death of a woman can be proved by a certified extract from a death register.