Giving Maternity Leave and Benefits

In 2017, India amended its maternity law thereby enhancing the maternity leave and benefits afforded to working mothers. The Maternity Benefit Act, 1961 is the law governing maternity benefits provided to working women in an establishment. The legislation aims at providing job security to women and also offers them a chance to recuperate from their condition.

The Act requires that any shop or establishment employs 10 or more persons in the preceding 12 months should:

1. provide maternity leave with benefits to every woman employee who has been in continuous employment with the employer for more than eighty (80) days in the twelve months immediately preceding the date of expected delivery.
2. all benefits should be communicated to the employees.
3. Provide a creche facility in case the establishment employs 50 or more employees. 

Let us base our understanding of the applicability and provisions of the Act on an example; 

ABC Co. Ltd is an organisation in the business of software development, with a total workforce of 50 employees and so are incumbent upon providing maternity leave and other benefits to all their women employees. Priyanka an employee of the Company has been in continuous employment ever since her appointment in April 2018. Priyanka is pregnant and her expected date of delivery is 1st November 2019. She wishes to derive benefits available to her under the Maternity Benefit Act. The questions which now arise are,

• Is Priyanka entitled to the leave and benefits ? 
• What leave and benefits is Priyanka entitled to ?

Employee’s eligibility for maternity leave and benefits

An employee is entitled to receive maternity leave and benefits only if she has worked in the establishment for a period of not less than 80 days in the 12 months immediately preceding the date of her expected delivery.  Since Priyanka joined the company in April 2018 and her expected delivery date is 1st November 2019, she is eligible to receive the benefits under the act as she worked in the company for a continuous period of over 80 days in the preceding 12 months.

Note: While calculating the continuous employment for 80 day period, the days for which the woman has been laid off  or holidays with wages should also be taken into account.

Duration of Maternity Leave 

As per new law, Priyanka is entitled to a total leave of 26 weeks to take in the manner she chooses i.e.

i) by dividing her leave into two phases i.e. before her expected date of delivery (upto 8 weeks) and post childbirth (in Priyanka’s case, she may claim her leave anytime after from 5th September 2019, i.e. 8 weeks before her expected date of delivery and the remainder of 18 weeks post delivery); or,

ii) all the 26 weeks leave post delivery.

Salary During Maternity Leave

During maternity leave, Priyanka is entitled to receive, payment of maternity benefit at the rate of average daily wage for the period of her absence. For calculating average wages, an average of the wages paid to Priyanka in the three calendar months immediately preceding the day on which she absents herself should be considered. In short, Priyanka is entitled to the same salary as she was drawing in the three months immediately preceding the date of maternity leave.

Note: In case of death of the employee during/after delivery/pregnancy, the benefits shall be payable only up to the day of her death. 

In addition to her salary, the employee should be allowed 2 nursing breaks of prescribed duration until her child attains 15 months of age.

Notice by Employee 

The employee is required to give a notice to her employer claiming maternity benefit.

It is pertinent to note that in case Priyanka gives a notice to her employer claiming maternity benefit for the period starting 5th September and ABC Co. Ltd accepts the same and permits her absence from work, despite being permitted to absent herself, Priyanka continues work upto 30th September 2019, then in such a circumstance she will forfeit benefits i.e leave receivable by her during the period ranging from 5th September to 30th September.

Work from home option

Upon expiry of the period of maternity benefits, the employee may in consensus with her employer and if the nature of her work allows her to work from home. However, no employee can be forced to work during the 26 weeks of her rightful maternity leave.

Penalty 

The law mandates that employers cannot refuse to pay maternity benefit or discharge or dismiss the employee during or on account of her absence from work in accordance with the provisions of the Act. Such acts are treated as offences and warrant punishment in the nature of imprisonment of not less than 3 months but which may extend to 1 year and a fine not less than Rs. 2000 but which may extend to Rs. 5000.

The maternity benefit law further provides for the following circumstances:

Know more about maternity leave and benefits. Contact Legawise for any further information about your liabilities as an employer under the maternity benefit law.