Changes in the new Maternity Act - Interesting read
Maternity Leave in
India Increased to Six Months
§ Maternity
leave increased from 12 to 26 weeks.
§ Female
employees with at least two children continue to be entitled to 12 weeks of
maternity leave.
§ Maternity
leave of 12 weeks for female employees adopting a child below 3 months and for
commissioning mothers.
§ Employers
having at least 50 employees to provide creche facility.
§ Working
mothers may be entitled to work from home.
§ Effective
date of the amendment yet to be notified.
The wait
finally ends! Maternity leave in India stands increased to 26 weeks for the
private sector. The effective date of the amendment will be separately
notified.
After
enactment of the stringent law on prevention of sexual harassment of women at
workplace in 2013, the Indian government has now given female employees another
reason to rejoice. With this development, maternity leave to be offered by
private employers in India has been brought at par with that of government
employees in India. It is significant to note that India now surpasses many
European and Asian countries in terms of maternity benefits being provided to
working mothers.
Following
enactment of 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.
A.
Background
The
Maternity Benefit Act, 1961 (“Maternity Act”):
1.
regulates employment of women in establishments before and after
child-birth;
2.
provides for maternity leaves and certain other benefits such as
leave for miscarriage or medical termination of pregnancy, leave with wages for
tubectomy operation, payment of medical bonuses etc.;
3.
is applicable to factories, mines, the circus industry,
plantations and shops and establishments employing at least 10 employees (“Covered
Establishments”), except female employees who are covered under the
Employees' State Insurance Act, 1948 (“ESI Act”);
4.
provides maternity benefits to female employees working in
specified establishments and excludes women in the unorganized sector;
5.
entitles female employees in Covered Establishments to receive
maternity benefits if they have worked with the employer for at least 80 days
in the 12 months immediately preceding the date of expected delivery (“Eligible
Employee”).
In
addition to the Maternity Act, certain other labour laws in India also provide
for maternity benefits. The ESI Act provides for payment of wages to an insured
woman, during her 26 week maternity leave. Women employed in newspapers or
working as journalists are also entitled to maternity leave of 3 months under
the Working Journalists (Conditions of Service) and Miscellaneous Provisions
Act, 1955. Similarly, female employees working in factories are entitled to 3
months of maternity leaves with full wages under the Factories Act, 1948.
Over the
past few years, there has been a continual demand to improve maternity benefits
being provided to female employees in order to ensure that infants are provided
with wholesome and proper care and nourishment. The Universal Declaration of
Human Rights (UDHR) (1948) pronounced the special rights of children for the
first time by providing that “motherhood and childhood are entitled to
special care and assistance”. The General Assembly in 2003 opined that “early
childhood is a crucial period for the sound development of young children.
Missed opportunities during these early years cannot be made up at later stages
of the child’s life1.”
The first
legally binding international document concerning child rights was the
Convention on the Rights of the Child, 1989, which was also ratified by
India in 1992. The Convention required its member states to ensure to the
maximum extent possible child survival and development2, render
appropriate assistance to parents and legal guardians in the performance of
their child rearing responsibilities and ensure the development of
institutions, facilities and services for the care of children3. As per
the standards set out by the International Labor Organisation (ILO) in the
Maternity Protection Convention, 20004, member
states have been recommended to provide atleast 14 weeks of maternity leave.
The Maternity Protection Recommendation, 2000 of the ILO recommends a longer
period of 18 weeks for maternity leave.
The Sixth
Central Pay Commission5 of India made a recommendation
in 2015 to relax the period of maternity leave to six months for Central
Government employees, which was considered and subsequently implemented6. This was
in line with the guidelines issued by the World Health Organization7 as well
as the Indian Ministry of Health and Family Welfare stating inter alia
that a baby needs to be nursed by the mother for a minimum period of six
months. In a few States, the respective State Governments8 have also
relaxed the period of maternity leave for State Government employees and have
also provided for an additional child care leave for a period of 730 days
(approximately 2 years)9 in special circumstances, to
look after their children when they are grappling with serious diseases. Last
year, fulfilling the electoral promise, the State of Tamil Nadu has announced 9
months (270 days) of maternity leave for State government employees as opposed
to the earlier limit of 6 months (180 days)10.
Other
State Governments are also seeing demands from employee unions for a like
change to be implemented in their States11. It is
also interesting to note that a number of leading companies had already
voluntarily amended their policies prior to the Maternity Amendment Act to
increase maternity benefits and provide various new-age benefits such as
adoption leaves, surrogacy leaves, paternity leaves etc12.
B.
Features
The
important revisions to the Maternity Act as a result of the Maternity Amendment
Act are as follows:
1.
Increase in Maternity Leave: Maternity leave for Eligible
Employees has been increased to 26 weeks (as against the previous 12 weeks
limit) in case of women having less than two surviving children. In other
cases, the existing period of 12 weeks shall continue to apply. Out of the 26
weeks, not more than 8 weeks can be taken before the date of expected delivery,
whereas earlier, the pre-natal period was prescribed to be not more than 6
weeks.
2.
Commissioning13 and
Adopting mothers: Maternity benefit has now been extended to
commissioning and adopting mothers. A female employee adopting a child below 3
months of age and commissioning mothers shall be entitled to 12 weeks of
maternity benefit from the date the child is handed over to them.
3.
Creche facility: Employers having at least 50 employees
will be required to provide creche facility either individually or as a shared
common facility within such distance as may be prescribed by rules. The
employer shall also be required to allow four visits a day to the creche
including the interval for rest allowed to her.
4.
Work from home: Employers may allow Eligible Employees to
work from home on a case to case basis depending on the nature of work. The
conditions governing such work from home may be mutually agreed between the
employer and the employee.
5.
Written intimation: Every employer shall be required to inform,
in writing and electronically, to every female employee at the time of
commencement of employment about the benefits available to her as per the
Maternity Act.
C.
Maternity Benefits Across the World
|
#
|
Country
|
Maternity
leave
|
|
1.
|
Argentina
|
§ 90 days
(3 months) paid maternity leave at the rate of 100% of wages
|
|
2.
|
Australia
|
§ 52 weeks
(12 months) of unpaid leaves with an option to take an additional 12 months/1
year with the consent of the employer.
§ Parental leave can be split between the
parents so long as total leave taken by both of them does not exceed 24
months.
§ Special maternity leaves (unpaid) may also
be availed by an employee over and above the aforementioned parental leave.
|
|
3.
|
Belgium
|
§ 15 weeks
(approximately 3.5 months) of paid leaves at the rate of 82 percent of the
employee’s salary for the first 30 days and 75 percent for the remainder
subject to a maximum salary prescribed by the government.
|
|
4.
|
Brazil
|
§ Mandatory
120 days of paid leaves at the rate of 100% of wages with additional 60 days
at the option of the employer.
§ Companies that choose to grant the
additional 60 will have the right to a tax benefit equal to the amount of the
salary of the employee during this extension period.
|
|
5.
|
Canada
|
§ Varies
between 15-17 weeks (depending on the province) of paid maternity leaves.
§ Maternity leave benefits are paid out by the
federal government through Employment Insurance.
§ The employee will receive wages equal to 55
per cent of the employee’s average weekly pay up to a maximum amount which is
set by the government each year.
|
|
6.
|
China
|
§ 98 days/
14 weeks of paid maternity leave via insurance
§ In case of abnormal or difficult childbirth
an extra of 15 days of leaves
§ In case of more than one child in a single
birth, an extra 15 days for each additional baby delivered
§ Additional ‘late maternity leave’ of
roughly 30 days (depending on location) if the female employee is older than 24
years.
|
|
7.
|
United
Kingdom
|
§ 52 weeks
(12 months), paid for up to 39 weeks in the manner below:
- First 6 weeks: 90% of
their average weekly earnings (AWE) before tax
- Remaining 33 weeks: a
fixed rate by the government or 90% of their AWE (whichever is lower)
|
|
8.
|
France
|
§ 16 weeks
of paid leaves for single birth paid at 100% of salary capped at a particular
amount (via social security scheme).
§ 34 weeks for twins and 46 weeks for triplets
|
|
9.
|
Germany
|
§ 14 weeks
of paid leaves calculated at the rate of 100% of the employee’s earnings
without any ceiling (via insurance and employers).
§ Extended leave of 12 weeks for premature or
multiple births
|
|
10.
|
Japan
|
§ 14 weeks
of paid leaves (6 weeks pre-birth and 8 weeks post-birth) paid at the rate of
66% of the mother’s regular salary.
|
|
11.
|
Russia
|
§ 20 weeks
(140 days) of paid leaves divided equally pre and post birth.
§ Wages calculated at the rate of 100% of the
average earnings, calculated on basis of employment during 24 months before
taking leave, subject to a ceiling based on the ceiling on earnings for
social insurance contributions established by the state on an annual basis,
the actual number of worked days and the length of the leave.
§ Maternity leave may be extended to 194 days
(approximately 28 weeks) in the event of multiple pregnancies or
complications, in which case, 84 days before birth and 110 days after birth
may be taken for multiple births (such as twins or triplets) or 86 days after
the birth if there are any complications.
|
|
12.
|
Singapore
|
§ 16 weeks
of paid leave at the rate of 100% of the wages up to two children (funded by
the employer for 8 weeks and 8 weeks by the government).
§ For 3rd and subsequent
childbirths, the government will pay for the full 16 weeks of maternity
leave.
|
|
13.
|
Sweden
|
§ 480 days
(60 weeks) of paid parental leave out of which 420 days are paid at a rate of
80% of the employee’s salary up to a prescribed capped limited (via
social insurance).
§ In case of twins, an additional parental
leave of 180 days (6 months)
|
|
14.
|
United
States of America
|
§ Employees
working in a firm of 50 or more employees who have maintained employment with
the same business for 12 months and have accumulated at least 1,250 working
hours over those 12 months 12 weeks, shall be entitled to unpaid leave of 12
weeks.
|
D.
New Set of Compliances
In terms
of compliances under the Maternity Amendment Act, private employers will now be
required to:
1.
amend their leave policies/ maternity leave policies to reflect
the expanded benefits under the 2017 Amendment Act;
2.
include appropriate references with respect to maternity
benefits in their employment offer letter / joining docket providing details of
maternity benefits under the law;
3.
build in systems, processes and policies to allow working
mothers to work from home;
4.
Provide creche facilities for working mothers and develop the
infrastructure for the same;
5.
Devise a non-discriminatory performance appraisal system taking
into consideration that the fact that the female employee was on maternity
leave for 6 months.
Additionally,
certain Indian states including Andhra Pradesh, Odissa, Punjab, Rajasthan,
Uttar Pradesh and West Bengal which have maternity leave provisions in their
state specific legislations, will need to amend those provisions to bring it in
line with the Maternity Amendment Act.
Certain
other labour laws14 also provide for maternity benefits to women employees in
different sectors which differ in their coverage, benefits and financing. The
conflicting provisions in those laws will also need to be amended.
E.
The Hits…
1.
While India’s private sector employers lagged behind the
government sector and many other countries in terms of providing extended
maternity benefits, with the enactment of the Maternity Amendment Act, India
has become one of the most progressive countries in terms of providing
maternity benefits.
2.
The Maternity Amendment Act is definitely a welcome step taken
by the Indian government enabling women to combine their professional and
personal roles successfully and to promote equal opportunities and treatment in
employment and occupation, without prejudice to health or economic security.
3.
A survey by the leading industry body, Assocham15 suggests
that up to 25% of female employees give up their career post child birth.
Additional maternity benefits like creche facility, work from home, etc. in
addition to the extended paid maternity leaves may see demonstrable results in
the form of greater number of female employees returning to work post maternity
and greater employee retention over a period of time.
F.
…And the Misses
1.
Although the Maternity Amendment Act is expected to benefit ~1.8
million women across the country, the government seems to have overlooked the
recommendation of the Sixth Central Pay Commission and has left out a majority
of the workforce that works in the unorganized sector16 in India
(estimated to be over 90% of the total workforce).
2.
The Maternity Amendment Act has missed out the opportunity to
introduce paternity leave and possibly a chance to spread the message that the
responsibility of running a family should be of both the parents. Seems like we
will need to wait longer for a ‘Maternity and Paternity Benefit Act’.
3.
Countries such as the UK, Singapore and Australia have
introduced various categories of leaves relating to child birth, including
parental leave (enabling parents to share the parental leave in the manner
suitable for them), paternity leave, family leave etc. where both the parents
receive the benefit of leaves at the time of child birth. This, to an extent,
helps parents to strike a balance between their careers and personal life and
also ensures that the child gets proper care and attention from both the
parents especially in his/her initial years of development. Although the steps
taken by the government is commendable, the government has missed out this
opportunity to catch up with such requirements.
4.
Unlike some other countries wherein the costing is borne by the
government or shared by the government and the employers or vide social
security schemes, in India, the cost of maternity leaves (wages during the
leave period) is to be borne by the employer (unless the female employee
covered under the ESI Act). Additional requirements such as having a creche
facility, etc. would also require employers to establish adequate infrastructure
in turn leading to more questions and more expenses. To help reduce the
financial exposure on the employer, an option could have been provided in terms
of part unpaid leave, something that is common in some of the developed
nations.
5.
There have been some news reports that suggests that the
increased maternity leave could act as a deterrent for certain employers for
recruiting female candidates. While it is hoped that it is not true, it could
unfortunately affect all the good work put in so far to promote diversity and
inclusiveness of women at workplaces.
6.
Given the objective of the statute, there also does not seem to
be a valid justification as to why the law should not apply to establishments
having less than 10 employees. The amendment fails to extend the applicability
of the statute to all establishments irrespective of the number of employees.
7.
The Maternity Amendment Act has not increased the medical bonus
amount payable which is currently low and does not match up to the current
inflationary trends.
You can
direct your queries or comments to the authors
Ref: http://www.nishithdesai.com
1 Source: Law Commission Report, 2015 (http://lawcommissionofindia.nic.in/reports/Report259.pdf)
2 Article 6 of the Convention
3 Article 18 of the Convention
4 India has not ratified this Convention.
6 Notification O.M. No. 13018/2/2008-Estt. (L) dated the
September 11, 2008, Government of India, Department of Personnel and Training
(Effective September 1, 2008)
13 A biological mother who uses her egg to have a surrogate
child.
14 Laws such as the Employees’ State Insurance Act, 1948, the
Factories Act, 1948, Working Journalists (Conditions of Service) and
Miscellaneous Provisions Rules, 1957, The Building and other Construction
Workers (Regulation of Employment and Conditions of Service) Act, 1996
16 Female workers in the unorganised sector include
agricultural labourers, seasonal workers, domestic workers or construction
workers.
Comments
Post a Comment
Please share your valuable comments and thoughts on this article. Thanks!