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The Maternity Benefit (Amendment) Act 2017 was introduced to protect women’s employment, and their and their children’s well-being, by offering them paid absence and related benefits during and after pregnancy. We sat down with the Human Resources head of a Mumbai-based multinational company to come to grips with the law and answer some of the most frequently asked maternity leave-related questions.

As per the Act, to be eligible for maternity benefit, a woman must have been working as an employee in an establishment for a period of at least 80 days in the past 12 months. Payment during the leave period is based on the average daily wage for the period of actual absence.

The Maternity (Amendment) Bill 2017, an amendment to the Maternity Benefit Act, 1961, was passed in Rajya Sabha on August 11, 2016; in Lok Sabha on March 09, 2017, and received an assent from President of India on March 27, 2017.

The provisions of The Maternity Benefit (Amendment) Act, 2017 are effective from April 1, 2017. However, provision on crèche facility (Section 111 A) shall be effective from July 1, 2017.

The Maternity Benefit Act 1961 protects the employment of women during the time of her maternity and entitles her of a ‘maternity benefit’ – i.e. full paid absence from work – to take care for her child. The act is applicable to all establishments employing 10 or more employees.

Key Amendments

Increased Paid Maternity Leave: The Maternity Benefit Amendment Act has increased the duration of paid maternity leave available for women employees from the existing 12 weeks to 26 weeks. Under the Maternity Benefit Amendment Act, this benefit could be availed by women for a period extending up to a maximum of 8 weeks before the expected delivery date and the remaining time can be availed post childbirth. For women who are expecting after having 2 children, the duration of paid maternity leave shall be 12 weeks (i.e., 6 weeks pre and 6 weeks post expected date of delivery).

Maternity leave for adoptive and commissioning mothers: Maternity leave of 12 weeks to be available to mothers adopting a child below the age of three months from the date of adoption as well as to the “commissioning mothers”. The commissioning mother has been defined as biological mother who uses her egg to create an embryo planted in any other woman.

Work from Home option: The Maternity Benefit Amendment Act has also introduced an enabling provision relating to "work from home" for women, which may be exercised after the expiry of the 26 weeks' leave period. Depending upon the nature of work, women employees may be able to avail this benefit on terms that are mutually agreed with the employer.

Crèche facility: The Maternity Benefit Amendment Act makes crèche facility mandatory for every establishment employing 50 or more employees. Women employees would be permitted to visit the crèche 4 times during the day (including rest intervals)

The Maternity Benefit Amendment Act makes it mandatory for employers to educate women about the maternity benefits available to them at the time of their appointment.

Know Your Rights: Maternity Leave

Does the number of children I already have affect the duration of my maternity leave?

Yes. If you’re giving birth to your first child, you’re entitled to 26 weeks. If you are giving birth to your second child, you’re also entitled to 26 weeks. But after the birth of two children, you are only legally entitled to 12 weeks of maternity leave. However, leave extensions depend on the HR of every organization and the circumstances of the mother and the baby.

Can women who adopt avail of the Act’s benefits?

Yes. If the baby you’ve adopted is under the age of three months, you are entitled for a maternity leave of 12 weeks.

What about women who become a parent via surrogate?

 A commissioning mother (the biological mother who uses her egg to create an embryo that is then implanted in another woman) is also entitled to a maternity leave of 12 weeks from the day the child is handed over to her.

How long do I have to have been employed by a company to be entitled to maternity leave benefits?

To be eligible to avail of maternity benefits, a woman must have worked at least 80 days in an organization over a period of one year before her expected date of delivery.

Am I entitled to full-time pay during my maternity leave?

If you’re an employee who has completed at least 80 days in an organization within the span of one calendar year, your leave will be awarded with full pay. 

Are only big companies required to offer maternity leave benefits?

The Act is applicable to both public and private sector organizations that employ 10 or more people. Companies and organizations with fewer than 10 employees are not required by law to offer maternity leave, though women have the right to ask such employers for maternity leave.

What should I expect from my company’s HR?

The Act requires every organization to inform a female employee of her rights under the Act at the time of her appointment and give the information in writing over an e-mail.