Understanding Maternity Benefits: What Are the Eligibility and Payment Rules?

Hi,

Can you please let me know:
(a) What is the eligibility working period criteria for Maternity benefits?
(b) Are wages covered under Basic, Gross, or CTC?
(c) Is it mandatory for the Company to pay for 26 weeks of Maternity leave for eligible candidates?
(d) Can we impose a condition of rejoining duty for payment, or half payment before delivery and half payment after rejoining duty?

Please suggest.

Eligibility for Maternity Benefits

Every woman employee, whether employed directly or through a contractor, who has actually worked in the establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery, is entitled to receive maternity benefit. This is outlined in Section 5(2) of the Act.

Maternity Benefit and Payment Details

Maternity benefit is awarded at the rate of the average daily wage for the period of a worker's actual absence from work. Apart from 12 weeks of salary, a female worker is entitled to a medical bonus of 3,500 Indian rupees, as per Section 5.

Definition of Wages

Read Section 3(n) extract as below: "Wages" means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes: (1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to; (2) incentive bonus; and (3) the money value of the concessional supply of food grains and other articles.

No.

Thank you, Mr. Nathrao. Please also clarify whether the payment should be for 12 weeks or 26 weeks as per the amendments of the Maternity Act 2017. Additionally, specify if it is required to be paid in advance or after delivery.

Section 5. Right to payment of maternity benefit. -

[(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery, and any period immediately following that day.]

What is the eligibility for a creche facility? How can I check if my company is liable for providing a creche facility?

Thanks in anticipation!

Maternity Benefit (Amendment) Act 2017 (MB Amendment Act) has come in force with effect from 1 April 2017. Effective July 1, 2017, the MB Amendment Act makes it mandatory for every establishment having fifty (50) or more employees to provide crèche facility. Women employees are to be allowed four visits a day to the crèche, a welcome change guaranteeing working women an additional protected environment at their workplace.
More clarity will come up when rules are framed under the Act.

The Maternity Benefit (Amendment) Act, 2017

The Maternity Benefit (Amendment) Act, 2017 regulates the employment of women before and after the birth of their child. This Act is expected to help women accommodate both their personal and professional lives. It not only helps women manage their family responsibilities effectively, but it also benefits organizations that are striving to increase workplace diversity and create an inclusive and supportive work environment.

50 employees or 50 women employees?

The amendments in this Act direct establishments that employ 50 or more employees to provide a crèche facility, either in the office or in any place within a comfortable radius for employees to pick up, drop off, and nurse the child. The mother will be allowed to visit the crèche four times a day. This will include her interval for rest. The government recently released a notification clarifying that companies need to provide the crèche facility effective from 1st July 2017.

What is the age limit for children?

The Act does not mention up to what age the child will receive the crèche facility. The Factories Act requires the crèche facility to be provided up to 6 years of age. Although, the daycare industry norm is to consider children up to 8-10 years.

Dear Sir/Madam, I am working in a Non-Profit Organization in Mumbai. I am 5 months pregnant. Hence, I requested my organization to provide maternity benefits according to the Maternity Benefit Act 2017, as previously only 3 months of maternity leave was given to employees completing 1 year in the organization.

Now my immediate team leader has informed me that they might not renew my contract from April 2018. As they are well aware, they cannot terminate my contract solely because I am pregnant. So, I would like to know if they have the authority to cancel my contract when other team members are continuing with theirs.

Can the employer terminate the female employee in case of maternity leave when she availed?

---

Can the employer terminate a female employee while she is on maternity leave?

Termination during maternity leave or because an employee asks for maternity leave is illegal.

If the female employee is not covered under ESIC, what is the procedure under the Maternity Act for the payment of her salary and leaves?

the Maternity Benefit (Amendment) Act, 2017 (“Maternity Amendment Act”) on March 27, 2017, the law also (a) extends maternity benefits to commissioning and adopting mothers, (b) mandates employers to provide creche facilities at the establishment, (c) allows women to work from home in certain cases and (c) requires employers to inform female employees at the time of their joining about maternity benefits available to them

The Maternity Benefit (Amendment) Act, 2017 Provisions for Female Employees

a) A third child: Those having two or more surviving children will be entitled to 12 weeks of paid maternity leave, of which not more than six (6) weeks shall precede the date of her expected delivery.

b) For female employees who are adopting a child who is less than three months old, and for commissioning mothers, the paid leave entitlement is for twelve (12) weeks.

c) A female employee who has undergone a miscarriage or medical termination of pregnancy is entitled to paid leave for a period of six (6) weeks immediately following the date of such an event.

d) A female employee is entitled to paid leave for two (2) weeks if she is undergoing a tubectomy operation, immediately following the date of such an event.

I have a query. A female staff member applied for Maternity Leave and was granted leave as per the Maternity Benefit Act 2017. Now she is demanding an additional 3 months of leave, stating that the child is attached to the mother and cannot stay with the family. We have creche facilities available, but she is not willing to accept this option.

Please advise on what should be done.

Legal Aspects of Employment Contracts During Pregnancy

It is legally wrong to cancel a contract of employment or terminate a woman during her pregnancy. However, if she is on a fixed-term contract (FTC), the employer can refuse to renew it. The employee cannot demand that the contract be renewed.

Maternity Leave and Employer Obligations

Any leave in excess of the 26 weeks provided under the Maternity Benefit Act can be refused. The employee can use the facilities available in the office. If she is not satisfied with the facilities, she may choose to resign. You cannot have the cake and eat it too. Either you can have a job or a family life. The employer has already fulfilled their obligations to a woman, and if you extend beyond that, it may set a precedent where others will demand the same as a right, and leave will be taken excessively. Everyone would prefer to be with their child if permitted, and if that is the case, why should we employ?

Dear all,

I have a query regarding maternity benefits. Can an eligible female employee take maternity leave in breaks? For example, if she is experiencing complications and needs to take a month off during the 2nd or 3rd month of her pregnancy, can she claim that time off as maternity leave?

No, maternity leave should be in one single stretch, and the maximum leave that can be taken prior to delivery is restricted to 8 weeks. Leave for any sickness arising out of pregnancy in the 2nd or 3rd month should be availed from your PL or sick leave, as the case may be.

Thank you!

I request seniors to clarify that, to be eligible, 80 days of working are required. Does this imply physical attendance or paid days?

The section states 80 days of actual work during the last 12 months. Read sec 5(2) of the Act.

Thanks a lot to both seniors. The reason I got confused is:

Eligibility for Maternity Benefit

No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than 80 days in the twelve months immediately preceding the date of her expected delivery:

Provided that the qualifying period of 80 days aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.

Explanation: For the purpose of calculating under this subsection, the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

Now, the inclusion of paid holidays is mentioned here, but nothing is mentioned about paid leave.

Thanks for clearing the doubts.

I have a query regarding the MEDICAL BONUS. In a case where the employee is availing the Group Insurance benefits for her Maternity, is the company still liable to pay the medical bonus (INR > 3,500/-)?

I believe it is relevant because it is mentioned in Section 8 of the Act that it is the employer who should bear the cost of pre/postnatal treatment or pay medical bonus.

Query on Medical Bonus and Maternity Benefits

What was your query? Whether the employer should pay a medical bonus if the employee is covered by mediclaim. My response was: If your mediclaim covers prenatal and postnatal care, the bonus need not be paid. I have also directed you to review the relevant terms, as most policies cover only treatment costs and not prenatal or postnatal care. It is therefore implied that the employer should pay it.

You then inquired about the scenario where the policy premium is borne by the employer. I explained that who pays the premium is not the concern of the insurers; what matters to them is whether the insured is covered by paying the premium or not.

Employer's Responsibility Under the Maternity Benefit Act

You have once again brought up a section in the Maternity Benefit Act which states that it is the employer's responsibility to pay the medical bonus. I reiterate that if your policy is structured in a way that the insurers will handle prenatal and postnatal care for your employee and newborn child, then the employer does not need to pay Rs 3500, as this obligation is assumed by the insurers. Moreover, if the employee is under ESI, will the employer pay a medical bonus? No, because this responsibility has been shifted from the employer to the ESIC.

I have joined a private organization on September 8th, 2017. I completed 6 months of probation on March 8, 2018, but I didn't receive a confirmation letter. My due date is June 1, 2018. I am planning to take maternity leave from the third week of May. I have informed HR about this, but they are denying my request for maternity leave since I joined the organization only six months ago. Am I eligible to avail maternity leave? If they ask me to resign from this job, what should I do? Kindly guide me here.

I want to know what the consequences will be under the Maternity Benefit Act, 1961 (amended) if the employee does not resume her position within the organization once the maternity benefit period is over.

Eligibility for Maternity Benefits

Humairaz, in order to get maternity leave and the bonus as applicable, you need not be confirmed in service. The only qualifying condition is that you should have worked for 80 days during the 12 months immediately preceding the expected date of delivery. Now, the interpretation of section 5(2) of the Act is very important. This section states that a woman employee who has worked for 80 days in the 12 months immediately preceding the date of delivery or expected date of delivery is entitled to maternity leave of 26 weeks. It is not just 80 days of working immediately preceding the expected date of delivery. This means that in order to be eligible for maternity benefits, one should have 12 months of service, and during this period, she should have worked for at least 80 days.

The above interpretation can be challenged, but I don't find a better interpretation for section 5(2). In the case of employees covered by ESI, the same condition applies. In that scenario, it is ESI contribution for 78 days in two contribution periods. Each contribution period consists of 6 months, and therefore, 12 months of service is implied in such cases. Consequently, you will not be eligible for maternity benefits.

Consequences and Actions

Poorva Puri mentioned that there are no consequences in either the Principal Act or the Amended Act. If she does not return, hire another person in her place; you cannot take any action to recover the amount paid.

Dineshkumar advised to read the entire post and then raise a question. This is analogous to asking who Sita's husband is after reading the entire Ramayana.

The Maternity Benefits Act, 2016

The Maternity Benefits Act, 2016 is applicable to women workers who are employed in establishments with 10 or more employees. Different countries have practiced various funding models with reference to maternity benefits. In some countries, the employer bears the cost, while in certain others, it is paid by the government. In India, the employer bears the cost for maternity benefits provided to women workers. Since a majority of the women workforce in India are employed in the unorganized sectors and small businesses with less than 10 employees, a major chunk of women workers are left uncovered.

Maternity Benefit Duration

Under the new Act, as amended, the maximum period of maternity benefit has been increased from the current 12 weeks to 26 weeks, in the case of women who have less than two surviving children. For women having two or more surviving children, the existing period of 12 weeks maternity benefit would continue. Further, a maternity benefit of 12 weeks would be made available to a 'commissioning mother' — the biological mother who utilizes her egg to generate an embryo implanted in any other woman. Also, for an 'adopting mother,' a maternity benefit of 12 weeks is provided if she adopts a child below the age of 3 months from the date the child is handed over.

I got this from the following. Hope it's helpful. https://www.indiafilings.com/learn/m...fits-act-2016/

I would like to request the new member to clarify section 2(1) of the Maternity Benefit Act, which details the applicability of the Act. As per my knowledge, the Act applies to every factory, mine, or plantation, even if the number of persons employed is less than 10. It is also applicable to establishments engaged in horse riding or acrobatic performances, regardless of the number of persons employed.

At the same time, for other establishments like trading organizations covered under the states' Shops and Commercial Establishments Act, the Maternity Benefit Act will only become applicable if they have 10 employees. Is there any change in this? Please guide us.

Applicability of the Act to Shops and Commercial Establishments

Yes, I know. What is sought is that the Act should be made applicable to shops and commercial establishments employing a lesser number of employees. The Act is even otherwise applicable to factories and mines without reference to the number of employees.

Suggestion for Applicability Based on Women Employees

My suggestion is that the Act should be made applicable to establishments employing a certain number of women employees. Currently, a shop or office with 10 persons, of which just one is a female employee, will be under the coverage of the Act. Automatically, the provisions relating to a creche, etc., will also be applied to such organizations when their manpower becomes 50.

Challenges for Small Employers

For a shop that employs, say, one or two persons, it is not at all practical to pay 6 months' salary to an employee who takes leave on the grounds of pregnancy and delivery. I don't think that the law-enforcing authorities would check the ability of the shop owner or the employer to afford it.

Once it becomes applicable to all establishments without reference to the number of employees, I am sure the small employers will face a big loss. At the same time, the law-enforcing officers can make it gainful because they can visit each and every establishment and see whether they follow it.

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?

I have not signed any bond/document. However, there is a generic policy document on the firm's website that states I will have to return my maternity pay if I resign within a year of joining. I wish to know if this can be upheld by law if challenged?

Legal Obligations Regarding Maternity Leave

Legally, an employee cannot be asked to return the salary paid for the maternity leave days if she resigns after availing of the benefits. Whatever is published on the official website of the company or written in the HR Manual of the company cannot be accepted because it is against the law.

When I say legally you cannot be asked to return the money, I would extend it by saying that morally we should not resign after availing of the maternity benefits. This will send a message that if all women do this, it will even lead to a reduction in the employability of women.