Maternity Benefit (Amendment) Act, 2017
Maternity Benefit (Amendment) Act, 2017
By - Nandish Shah*
The Ministry of Labour and Employment , Government of India (“Ministry of Labour”) vide official Gazette notification dated 31 March 2017 has appointed 1 April 2017 as the date on which the Maternity Benefit (Amendment), 2017 (“MB Amendment Act”) has come into force. The MB Amendment Act received presidential assent on 27 March 2017. The Act further amends the Maternity Benefit Act, 1961 (“Act”). However, the relevant provision on work from home will come into force on 1 July 2017.
The MB Amendment Act regulates paid maternity leaves entitlement and other related benefits for women employed in factories, mines and shop or commercial establishment employing 10 or more employees.
The key amendments introduced in the MB Amendment Act are summarized as below:
i. The definition of commissioning mother is inserted, which is defined in Section 3 (ba) as “…Commissioning mother means a biological mother who uses her egg to create an embryo in any other women…”
ii. The MB Amendment Act has increased the duration of paid maternity leave available to women employees as provided in Section 5 of the Act from existing 12 week to 26 weeks. Under the MB Amendment Act, this benefit can be availed by women for period extending up to 8 weeks before the expected delivery date and remaining 18 weeks can be availed post childbirth. The MB Amendment Act also provides that for women who are expecting after having 2 children, the duration of paid maternity leave shall be 12 weeks i.e. 6 week pre and 6 weeks post childbirth.
iii. The MB Amendment Act also extends certain benefits to commissioning mother as well and provides that every woman who adopts a child shall be entitled to 12 weeks of maternity leave from the date of adoption.
iv. The MB Amendment Act has also introduced an enabling provision relating to work from home for women, which may be exercised after the expiry of maternity leave of 26 weeks, depending upon the nature of work, woman employees may avail this benefit on terms that are mutually agreed with the employer.
v. The MB Amendment Act makes it mandatory for every establishment employing 50 or more employees to avail crèche facility. Woman employees would be permitted to visit crèche 4 times during the day.
vi. The MB Amendment Act makes it mandatory for employers to educate women about the maternity benefits available to them at the time of their appointment.
The MB Amendment Act needs clarity on the period of which the crèche facility could be extended to the concerned woman as well as the aspect of availability, frequency and extent of nursing breaks. It is also unclear whether increased maternity benefits will apply to women who are presently undergoing maternity leave. Employers may have to wait until the rules are issued clarifying the position on the arrangements which could be made with third party service providers for crèche facilities with specific requirements in terms of distance from workplace, dimensions and other related aspects.
Moreover, the rationale for having separate effective date for implementing "work from home" option is also unclear, given the fact that work from home is an enabling provision to encourage the employers to provide such option to a woman depending upon nature of work being handled by her and not a statutory requirement under the MB Amendment Act. It can be expected that the Ministry of Labour will shortly come out with rules clarifying these aspects.
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*Director – Operation
5th year law student Mumbai University
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REFERENCES
1. The Maternity Benefit Act, 1961
2. The Maternity Benefit (Amendment) Act, 2017
3. http://labour.gov.in/sites/default/files/Maternity%20Benefit%20Amendment%20Act%2C2017%20.pdf
