Maternity Leave in India: The Law and Benefits

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Maternity Law in India

Last year, India amended its maternity law – surpassing many European and Asian countries with regards to maternity benefits being provided to working mothers.

The Maternity Benefit (Amendment) Act, 2017, has increased the duration of maternity leave from 12 weeks to 26 weeks for two surviving children. In cases where a woman has more than two children, the leave is limited to 12 weeks only.

Some of the other important provisions of the Act include the following:

  • Significance to commissioning and adopting mother –a woman who adopts a child below three months or commissioning mothers can avail maternity leave for up to 12 weeks. The period of maternity leave is calculated from the date when the child is handed over to the parent;
  • Provision to work from home – depending on the nature of work and her employer’s consent, a new mother can now choose to work from home; and
  • A mandatory provision of on-site day care services – every establishment with 50 or more employees is required to provide for crèche facilities within a prescribed distance. A new provision under the amended Act permits women-employee to visit crèche four times during the day, including the regular rest interval.

The new Act also provides for additional maternity leave of four weeks in case of illness supported by a doctor’s opinion.

To claim leave prior to expected delivery, the employee should give a notice in writing stating the date of absence from work and a certificate of pregnancy. The employer is obliged to make payment in advance of this period.

Following the date of delivery, the employee must also send another notice with a certificate of delivery. Notably, remaining payment must be transferred within 48 hours.

Employers must note that during the maternity period women employees are entitled to full wages.

Applicability of the Act

  • Establishment

The MB Act applies to every factory, mine and plantation, and any shop or establishment in which ten or more persons are employed, or were employed on any day of the preceding twelve months. It does not, however, apply to factory or other establishments to which other maternity benefit laws apply.

  • Employee

To avail the maternity benefits, a woman employees must have worked in the establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery.

For calculating the number of days on which a woman has actually worked in the previous year, the days she was on holiday with wages, must also be counted.

Employers must note that there is no wage ceiling or any restriction with regards to the type of work a woman is engaged in, for coverage under the Act. The definition of a woman employee under the Act extends the benefit to all women employees including those employed through an agency or on a contract basis.

Compliance requirements for employers

  • Review and amend employee maternity leave policies to reflect the expanded benefits under the 2017 Amendment Act;
  • Update and include appropriate references with respect to maternity benefits in employment contracts – reflecting the new maternity benefit entitlements and obligation under the law;
  • Develop systems, processes, and policies to allow working mothers to work from home;
  • Develop the infrastructure for mandatory crèche facilities for working mothers; and
  • Devise a non-discriminatory performance appraisal system taking acknowledging the absence of female employees.

Taking into account the health and safety measures of new mothers, the Act also mandates employers to ensure that no woman works during the six weeks immediately following the day of her delivery or her miscarriage.  It is also illegal for an employer to discharge or dismiss a woman employee on account of such absence.

Furthermore, the employer must not employ pregnant woman employee to do any work of an arduous nature or work that involves long standing hours.

If an employer contravenes to the provisions or the rules of the Act, the Act provides for penalties either with imprisonment which may extend to one year, or with a fine which may extend to Rs 5000 (US$70), or with both.

Challenges for employers

One of the key challenges for employers providing maternity benefits in India is that they have to bear the cost of it on their own. Whereas in most other countries, the cost of maternity benefits is shared by both the employer and the state government.

Under the amended Act, the provision of full payment of wages during maternity leave, and building of mandatory creche facilities further hikes the costs for employers – increasing employers’ preference for hiring male workers.

To support employers with the extra financial burden and ensure women’s equal participation at work, India’s labor ministry has recently proposed a policy.

Though yet to be finalized, the policy aims to reimburse employers the salaries paid for seven of the additional 14 weeks of maternity leave for female employees in the Rs 15,000 (US$208) salary bracket who have been Employment Provident Fund Organization (EPFO) subscribers for 12 months.

Alternative laws that provide maternity benefits in India

Besides the Maternity Benefit Act, there are several other laws in India that provide for maternity benefits in India.

The Employees’ State Insurance (ESI), a self-financing social security and health insurance scheme for workers provides for maternity benefits to women in lower-income jobs. It is applicable to employees earning Rs 15,000 (US$208) or less per month, with the employer contributing 4.75 percent and the employee contributing 1.75 percent.

Those who qualify may receive maternity benefits under the ESI scheme instead of the Maternity Benefits Act.

Other laws offering maternity benefits include the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 that grants 12 weeks of maternity benefits; and the Factories Act, 1948 that grants 12 weeks of maternity leave with full wages.

Get professional advice

Maternity laws in India are not highly convoluted. However, the country has various labor laws that provide maternity benefits to women in different sectors. These laws differ in their coverage, benefits, and financing of the benefits – making it tricky for companies to comply with the provisions.

To ensure that your company’s HR practices are in line with the country’s employment regulations and the recent amendments to the Maternity Benefit Act, it is advisable to employ a specialist consultant.

Editor’s Note: This article was first published in 2016 and is updated on November 15, 2018 to accommodate latest regulations.


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9 thoughts on “Maternity Leave in India: The Law and Benefits

    HK says:

    I am working in a Nationalized Bank since Oct 2005. I have taken 2 year Sabatical leave which is exclusively for ladies employees of the Bank. While on my Sabactical leave, i have given birth to a baby gal in the month of Dec 2016 and my sabatical leave is expiring in the month of June 2017. Can i get maternity leave in additon to Sabatical leave?

    Preety Kumari says:

    I worked for an Indian Tiles company, since last 6 months, As per the company rule they give the final confirmation after six months on the basis of employee performance but now i am three months pregnant and today got the letter from HR’s end that my last working day is 31st May’17.

    Please suggest, what steps can i take against the company.

    Swarna D says:

    I work in a small company and we give maternity benefits to our employees. Recently, one of the girls who went on maternity leave delivered a healthy baby but passed away from complications two days later.
    My question is – what benefits does the family ( husband, child, parents) get if any. Is there a 6 months salary to be paid to the family?
    Please advise. Thanks

    vijay says:

    Hi
    May i know what is the current maternity benefits for c2h(contract to hire) employee in india.

    Lucky says:

    Hello, my wife is working with Private Co (Institute) and is 5 months pregnant. She spoke to her HR about the Maternity Leave and she got response as – “We do not have a Maternity Leave Policy in our organization”

    I like to understand here that

    1. Is the Maternity Benefit Act doesn’t apply to Private Cos?
    2. If yes, what stepts can be taken to safeguard the interest of the employee?

    Kindly help with the information and whom to contact for any help

    Hi
    Thanks for your query.

    Any establishment being a factory, mine, plantation, Government establishment, and any other establishment that is industrial (IT Manufacturing), commercial (Malls, Cinemas, Hospitals) or agricultural in nature having 10 or more employees, in the territory of India (except the state of Jammu and Kashmir) is required to comply with the Maternity Benefits (Amendment) Act, 2017. The act, however, does not apply to any factory or other establishment to which the provisions of the Employees’ State Insurance Act, 1948 apply.
    Any woman working full-time in the above-mentioned establishments of the organized sector for a period of more than 80 days in the 12 weeks preceding the date of her excepted delivery, or date of the child being handed over to her (In case of adopting and commissioning mothers) is entitled to all benefits given by the act.

    If any employer fails to pay any amount of maternity benefit to a woman, who is entitled under this act, or discharge or dismisses such a women on account of her absence from work due to maternity leave, he shall be punishable with imprisonment for a minimum period of 3 months and maximum of a year and with fine of minimum two thousand rupees and maximum five thousand rupees.
    Section 14 of the act talks about the appointment of Inspectors under this act, who have the power of examining any registers, records and notices to ensure that the act is being implemented. The Inspector also has the power of directing payments to the aggrieved party. The Inspector may also make an inquiry if he is satisfied that either a payment has been wrongfully withheld, or a female employee has been discharged or dismissed on account of her absence of pregnancy.

    If an establishment fails to produce (on the demand of the inspectors) any registers, records and notices kept in pursuance of this act, they are punishable with imprisonment (which may extend to one year) or with fine (which may extend five thousand rupees), or with both.

    Nilofer Mani says:

    Hi, I work for an MNC in Gurgaon. I have recently returned from my paid maternity leave. My question is this : If I were to resign now (I now feel i am unable to handle work and home), am I required by law to pay back my 6 month maternity leave pay? Can my firm impose this clause on me now?

    @nilofarmani: Thank you for your query. There is no such clause in the Act. Resignation will be treated as per the terms and conditions of your contract of employment, including serving notice period. For more information, you may reach out to our services team, https://www.dezshira.com/office/india.

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