Maternity Benefit (Amendment Act) , 2017 receives Presidential assent

Maternity Benefit (Amendment Act) , 2017 receives Presidential assent

March 29, 2017 Compliance Blog 16

 

In a Corrigendum issued by the Ministry of Labour and Employment (“Ministry”) on 3rd April, 2017, the Ministry has rectified the earlier notification S.O. 1026(E) dated 31st March, 2017(reported in the trail mail)  stating that Section 4 (1) of the Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”)  will come into effect from 1st July,2017 and not the provision w.r.t the option to work from home [Section 3(5)].

Section 4(1) of the (“Amendment Act”) reads as follows:

(1) Every establishment having fifty or more employees shall have the facility of créche within such distance as may be prescribed, either separately or along with common facilities:

Provided that the employer shall allow four visits a day to the creche by the woman, which shall also include the interval for rest allowed to her.”

Hence, the option to work from home [Section 3(5)] is effective since 1st  April, 2017. The requirement to have the crèche facility will be effective from 1st July, 2017.

 

Background:

The Indian Labour Conference (“ILC”) in its 44th, 45th and 46th Session had recommended enhancing the maternity leave under the Act from existing 12 weeks to 24 weeks. The Ministry of Women and Child Development and other stakeholders had also insisted in enhancing the maternity benefit under the Act.

Basis the recommendations of the ILC and in the wake of several requests from stakeholders, the Rajya Sabha and the Lok Sabha had passed the Bill.

The Lok Sabha has passed the Maternity Benefit (Amendment) Bill, 2016 on 9th March, 2017. The Bill had already been passed by the Rajya Sabha during the Winter Session on 11th August, 2016. With this, the Bill stands passed in the Parliament.

Highlights of the Amendment Act:

  1. Increase in the duration of maternity leave to 26 weeks:

The Amendment Bill increases the maternity leave benefit to a period of 26 weeks. The maternity benefit should not be availed before eight weeks from the date of expected delivery.

Prior to this, woman were entitled to maternity leave benefit of 12 weeks only of which not more than six weeks should precede the date of her expected delivery.

  1. Maternity leave of 12 weeks for mother/s who are adopting or commissioning mothers

In terms of the Amendment Bill even a woman who legally adopts a child below the age of 3 months or a commissioning mother will be entitled to maternity benefit for a period of 12 weeks. The 12-week period of maternity benefit will be calculated from the date the child is handed over to the adopting or commissioning mother.

This benefit has been introduced for the first time for adopting and commissioning mother/s.

 

  1. Option to work from home:

After availing the maternity leave benefit, an employer may allow a woman to work from home, if the nature of work assigned to her is such that she may work from home. The terms, conditions and duration for the work from home arrangement would be as per the mutual agreement between the employer and the woman.

The Act does not provide for an option to work from home.

  1. Crèche facility:

Upon having 50 or more employees, every establishment is required to have the facility of crèche within such distance as may be prescribed, either separately or along with common facilities. The employer is required to allow four visits a day to the crèche by the woman, which will also include the interval for rest allowed to her.

This is a new requirement. Under the provisions of the Act there is no requirement to provide for a crèche facility on the part of the employer.

  1. Awareness about maternity benefits:

Every establishment is required to intimate in writing and electronically to every woman at the time of her initial appointment regarding every benefit available under the Act.

 

The Act is silent on these aspects.

  1. For the first time, the role of a “commissioning mother” has been recognized and defined. A commissioning mother means “a biological mother who uses her egg to create an embryo implanted in any other woman”. Prior to this, the Act did not recognize the role of a commissioning mother.
  1. For woman who have two or more surviving children, the maternity benefit will continue to be 12 weeks, which cannot be availed before six weeks from the date of the expected delivery.

 

Source: Ministry of Law and Justice

 

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16 Comments

  1. poonam

    March 30, 2017
    Reply

    my 12 weeks are about to over by 10th april 17, will my maternity leave extended to 26 weeks since now the bill is passed

    • Lexplosion

      April 4, 2017
      Reply

      Dear Poonam,

      The Ministry of Labour and Employment has not provided any clarity on whether the provisions of the Amended Act will apply to mother/s who are already on their maternity leave. The Act is effective 1st April, 2017 and has not be given a retrospective effect. Till further clarifications by the Ministry this will not be possible to fairly comment upon.

  2. Shankar

    March 30, 2017
    Reply

    What will happen to the mothers who are already on Maternity leaves? Are they entitled to avail this benefit? My wife's maternity leave is ending on 31st March 2017, will she be eligible for this new benefit? Please advise.

    • Lexplosion

      April 4, 2017
      Reply

      Dear Shankar,

      The Ministry of Labour and Employment has not provided any clarity on whether the provisions of the Amended Act will apply to mother/s who are already on their maternity leave. The Act is effective 1st April, 2017 and has not be given a retrospective effect. Till further clarifications by the Ministry this will not be possible to fairly comment upon.

      In this case, since your wife’s maternity leave has ended on 31st March, 2017 she will not be eligible to the benefits under the Maternity Amendment Act since the Amendment Act is effective from 1st April, 2017

  3. Sujoyta Ghosh

    April 2, 2017
    Reply

    Thanks for the update.
    I'd like to know as to what would be the deadline for a pvt company to implement the amended norms.
    By when would the official gazzette be published?
    Also any info on the creche being paid for by the company/employee shall be welcome.

    • Lexplosion

      April 4, 2017
      Reply

      Dear Sujoyta,

      All the provisions contemplated in the Maternity Benefit (Amendment) Act, 2017 (Amendment Act) except the provision w.r.t the option to work from home [Section 3(5)] is effective since 1st April, 2017.

      Section 3(5) will come into effect from 1st July, 2017.

      Hence, companies will have to implement these provisions from 1st April, 2017,

      Creche facility:

      Upon having 50 or more employees, every establishment is required to have the facility of crèche within such distance as may be prescribed, either separately or along with common facilities. The employer is required to allow four visits a day to the crèche by the woman, which will also include the interval for rest allowed to her.

      This is a new requirement. Under the provisions of the Act there is no requirement to provide for a crèche facility on the part of the employer.

  4. Meena Srivastava

    April 4, 2017
    Reply

    My 12 weeks maternity leave will end on 18th April 2017. Will I be eligible for the extended leave? When such dates will be declared in Gazette?

    Regards

    • Lexplosion

      April 7, 2017
      Reply

      The Maternity Benefit (Amendment) Act, 2017 is effective from 1st April, 2017 except the provision w.r.t the creche facility [Section 4(1)]. Section 4(1) will come into effect from 1st July, 2017. The Act is effective 1st April, 2017 and has not be given a retrospective effect.

      The Ministry of Labour and Employment has not provided any clarity on whether the provisions of the Amended Act will apply to mother/s who are already on their maternity leave. The Act is effective 1st April, 2017 and has not be given a retrospective effect. Till further clarifications by the Ministry this will not be possible to fairly comment upon.

  5. Nazia

    April 5, 2017
    Reply

    By when do you, we will get clarity on the extension of Maternity Leave for mother's then 26weeks. As it's equally important for them to take care of their kids.

    • Lexplosion

      April 7, 2017
      Reply

      Please explain what do you meant by “for mother’s then 26 weeks”.

  6. Vidisha Balan

    April 7, 2017
    Reply

    Hello Lexplosion

    Is any more clarifications expected from the ministry on whether those who were on maternity leave as of 1st April and those who finished maternity leaves before 1st April (but kids still less than 26 weeks old) will get the benefit?

    • Lexplosion

      April 17, 2017
      Reply

      Yes, responding to numerous queries on the revised provisions under the Maternity Benefit (Amendment) Act, 2017 (“Act”), the Ministry of Labour and Employment has clarified as follows:

      · The enhanced maternity benefits can be extended to women who are already under maternity leave as on 1st April, 2017.
      · Women who had already availed 12 weeks of maternity leave prior to 1st April, 2017, will not be entitled to avail the extended benefits of the 26 weeks leave.
      · Any dismissal / discharge of a women from her services by her employer during her pregnancy is unlawful and such conduct is punishable under the Act.

      · The extended benefits under the Act is applicable to all women employees working in mines, plantations, shops and establishments and factories, both the organized as well as the unorganized sectors.

      · The Act is applicable to all women who are employed in any capacity directly or through any agency i.e. either on contractual or as consultant.

  7. Ritesh

    April 13, 2017
    Reply

    Hello

    My Wife's Maternity leave started from March 12, 2017 would she will be eligible for the maternity amendment bill which is effective from April, 2017.
    As told to my wife from the company that she is not eligible for the leaves.

    • Lexplosion

      April 17, 2017
      Reply

      Recently, the Ministry of Labour and Employment has clarified that the enhanced maternity benefits provided in the Maternity Benefit (Amendment) Act, 2017 (“Act”) can be extended to women who are already under maternity leave as on 1st April, 2017.

  8. Sahil

    April 29, 2017
    Reply

    Hi my wife is 24 weeks pregnant. She plans to start her break on 1st July. She has been with the company since 10 years and is working at a very senior position. When asked about her maternity benefits, the company boss stated that she would only gets 3 months. And he quotes "is upto the company to decide, there is no forced implication from govt." i am unable to find a piece of paper published by govt that she can present to get her true benefit. Also if i had to report this to any govt body , I don't know which door to knock. Please help.

  9. vikas singh

    May 2, 2017
    Reply

    my wife has taken her ML from 1 jan to 31 macrh so now is it possible to take benefit of new maternity amendment act 2017

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