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Introduction
The previous article in this series reviewed the major principles of The Maternity Benefits Act,1961 and the main amendments, as incorporated in the Maternity Benefits (Amendment Act), 2017.
The Maternity Benefits Act (MBA), 1961 had come into existence to safeguard women’s rights at work, through the recognition of women’s rights and needs around maternity or childbirth and aftercare. Primarily, the Act aims to regulate employment structures and environment of women in certain establishment(s) for the period of time before and after child-birth, also seeking to provide for maternity and certain other benefits.
The intention of this article is to provide employers and decision makers at work with a proper understanding of their roles and responsibilities under the Maternity Benefits Act, 1961, and its recent amendments.
By exploring the intricacies of this legislation, the article seeks to create a snapshot for employers regards the compliance requirements to be adhered to under the Act and its amendments, thereby empowering the reader to create a supportive and inclusive work environment, especially in the context of women employees.
Maternity Benefits Act (MBA, 1961) and the Maternity Benefits Amendment Act (MBAA, 2017): Implications to Employers:
i. Key compliances measures Employers need to follow:
-> Provision of Maternity Leave: Under the MBA, 1961, it is mandatory that female employees receive leave with pay up to 26 weeks as per the Maternity Benefits (Amendment) Act (2017) this can be availed up to 8 weeks prior to or post their expected date of delivery.
It is necessary for employers to provide this extended maternity leave and pay regular salaries to pregnant women.
Failure to do so can lead to non-compliance with the law.
-> Provision of Medical Allowances and Nursing Breaks: The law requires employers to give medical entitlements and nursing breaks for pregnant women. It gives expectant mothers an opportunity to go for all the prenatal checkup visits thus taking care of their health.
Failure to do so can lead to non-compliance with the law
-> Recognition of a wider scope for those women eligible to access Maternity Benefits under the Amendment Act (2017): The MBAA, 2017 introduces the provision to grant 12 weeks of maternity leave to a woman who legally adopts a child before 3 months of age, and for a commissioning mother i.e., a biological mother who uses her egg to create an embryo implanted in another woman.
Failure to do so can lead to non-compliance with the law
-> Protection Against Discrimination: It is prohibited for employers to fire women simply due to being pregnant or undergoing leave related to pregnancy. It is necessary to ensure job security and stability.
Employers must know that being discriminatory against anyone has serious punitive issues attached to it.
Failure to ensure this can lead to non-compliance with the law
-> Provision of Alternative Work Arrangements: The MBA, 1961 has no explicit reference to work from home but permits temporary transfer or alterations in work arrangement if the nature of working cannot be suitable with their pregnancy. Employers should seek other forms of work that may be able to consider a pregnant employee including the option of working from home.
Failure to do so can lead to non-compliance with the law. Work from home or flexible working hours is a good to have practice that may support pregnant women at work.
-> Liability in case of Death of Woman: If a woman entitled to maternity benefit or any other amount under this Act, dies before receiving such maternity benefit or amount. The employer is liable for maternity benefit under the second proviso to sub-section (3) of section 5, the employer shall pay such benefit or amount to the person nominated by the woman in the notice given under section 6 and in case there is no such nominee, to her legal representative.
Failure to do so can lead to non-compliance with the law
-> Prohibition of dismissal during absence or pregnancy: Where a woman absents herself from work, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.
Failure to do so can lead to non-compliance with the law
-> Provision of Creche Facility and supportive structures at work: As per Section 11 A, any organization with more than 50 employees must have creche facilities within such a distance as could be determined by the regulation. Every employer must allow an about four visits in a day to the creches which also include her the interval for rest allowed to her.
Failure to do so can lead to non-compliance with the law. Also, when a woman is first appointed, every establishment must inform her in writing and electronically of all the benefits offered by the Act.
Coverage of Contractual Employees: All female employees regardless of their employment status are covered under the MBA, 1961. If a female employee is eligible for maternity benefits including maternity cover and medical payments, then employers should provide them for her as it applies to contractual female employees.
Failure to do so can lead to non-compliance with the law
ii. Consequences for non-compliance with the Maternity Benefits Act, 1961 and Maternity Benefits (Amendment) Act, 2017 and Provisions
If a woman believes that she is entitled to maternity benefits or other payments under the MBA, 1961, or if anyone believes that payments due under the act have been improperly withheld, they can make a complaint to the Inspector under section 17 of the MBA, 1961 according to which an Inspector is authorized to conduct an inquiry into the matter. If it is found that payments were wrongfully withheld or that a woman was discharged or dismissed due to her absence from work as protected by the act, the Inspector can issue orders for the appropriate remedy, including directing the payment of withheld amounts or taking other suitable actions as per the circumstances.
Note: Exemptions for Some Establishments (S. 26):
If the government believes that certain establishments already provide benefits to women that are as good as or better than those in the MBA, 1961, it can exempt them from following some or all the Act’s rules. This exemption can come with conditions and restrictions mentioned in an official notice.
Section 21 outlines the penalties for employers who violate the provisions of this Act or its associated rules. If an employer is found to be in violation, they can face imprisonment for up to three months, a fine of up to five hundred rupees, or both.
In cases where the violation pertains to maternity benefits or the payment of any other owed amount, and if the maternity benefit or amount has not already been recovered, the court shall in addition recover such maternity benefit as if it were a fine, and pay the same to the person entitled.
Notice
Recent developments – Court Judgments:
The case of Kavita Yadav v. Secy, Ministry of Health and Family Welfare (Civil Appeal No(S). 5010/2023) (17th August 2023)
Facts of the case:
- In this case, the appellant was employed as a pathological doctor at Janakpuri Hospital, Delhi. There was a 3 years renewable contract signed between the employer and her.
- On 1st June, she filed an application for a maternity leave under Section 5 of the act and received maternity benefits only until the 11th When she asked why, the employer explained that her contract period ended on 11th June and hence, she would not receive any more benefits.
- The appellant also contested the employer in the and the Delhi high court.
Verdict:
- Supreme Court gave a verdict upon this case on 17th August, 2023. The entitlement of a women of either medical or maternity benefits mentioned under Section 5 and 8, shall be given by the employer even beyond the expiration of the duration.
- The court considered Section 12[2(a)] as mentioned above stating that even after being discharged or dismissed this provision inherently allows for the extension of benefits beyond the employment term.
- Section 27 was highlighted in this case which takes precedence over other laws and agreements.
- As per Section 27 the regulations outlined in the Act will apply and take precedence over any conflicting provisions found in other laws or within the terms of any award, agreement, or employment contract, regardless of whether they are established before or after the enactment of the Act
This verdict reaffirms the legal mandate for maternity leave and benefits in favour of women. Failure to do so amounts to breach of law and liabilities.
The Court’s stance is clear, The MBA, 1961 provides that section 5 and 4 stipulates that even where the contract employment terminates, all medical and maternity benefits must be accorded to the employees by the employer.
The objective of it is to promote gender equality and the protection of women’s rights. A woman is entitled not to be discriminated against within the employment context because of her maternity. These provisions must be understood by employers who are obligated by the law to provide maternity leave supporting the employees’ rights.
Further aspects to consider regarding additional Maternity Benefits:
As leaders and decision makers at work, employers can greatly contribute to facilitate pregnant mother’s wellbeing. It’s important to keep in mind that these provisions under the Law are made to support persons experiencing a pregnancy to be able to navigate the various changes to their bodies and diverse aspects of their lives, while ensuring that they are protected in the context of the workplace, by responding to their unique needs and emerging stressors.
Wearing the lens of the employer, and to ensure DEIB goals are being achieved at work, we may also choose to go beyond the MBA, 1961 and the Amendment Act of 2017 to ensure more holistic coverage within the organization. This will ensure progress in terms of psychological safety and that no one gets left behind in the context of work. Here are some aspects to consider:
- No Strict Contracts for Maternal Leave: There should not be such contracts for maternity leave which are inflexible. The contract should be able to consider and assimilate the unique challenges the women employee may face during her pregnancy, since every pregnancy comes with its unique set of challenges. These contracts are a sure way to promote an inclusive work and fair working atmosphere.
- Investing in culture building, training and awareness programs: Ensure robust training and awareness programs that support managers and supervisors to understand the need for support from an empowerment and strength perspective as well as rights and duties as per internal policy and process as per the Law. Ensuring the same will ascertain that there is less space for discrimination at work.
In addition to sensitization of all employees, women specifically need to understand their rights as per the Law, and the methods of redressal of grievances related to these aspects at the workplace as set up internally by the organisational policy as well as by Law.
This will ensure that women are more empowered to support themselves and negotiate their requirements around this time – also directly assuring retention of talent and an inclusive work environment.
- Adapting to Evolving Needs: Organisations must stay current and on pulse with evolving employee needs. This could be carried out through regular check ins with the employees through surveys, conversations and group discussions. This will support workplace leaders to :
- Refocus on organizational policies toward the changing needs of pregnant working women.
- Implement mental health care strategies for pregnant women during the prenatal and early mothering time
- Implement effective support strategies for returning mothers
- Create space to access support (ERGs, group therapy spaces, etc)
- Offer flexible working hours e.g., part-time opportunities and home-based solutions for mothers to balance emerging needs
- Expand the definition and scope of terms and support to all employees: Employers need to keep in mind the changing definitions, systems and practices around child birth, child care and adoption. Acknowledging that the set up of family may not always be the dominant normative but could include fathers stepping into a role of primary caregiver, single parents, queer folx, etc requires the leader at work to go above and beyond to ensure coverage and support at a policy level. Use of terms like “Parental leave policy” or “Parental benefits” may support all employees in need of support immediately following child birth or adoption are covered and have a space for their unique concerns to be seen and addressed.
Conclusion:
Therefore lastly, employer must understand their duty is providing maternity paid time off, medical expenses allowance and prevention from sexual harassment and discrimination.
Therefore, employers need to think of alternative ways of work i.e. to provide a flexible environment for the pregnant women and facilitate them to become mothers.
Employers must always update themselves as the needs for working women change. Every employer should create work environments where all mothers are able to effectively balance their professional and personal lives.
FAQs
- Are creche facilities mandatory under the Maternity Benefits (Amendment) Act, 2017?
The language of Section 11A of the Amendment Act, 2017 is that Crèche facilities shall be established at “every establishment”. Thus, going by the rule of literal interpretation, it can be inferred that the section mandates to establish crèches only in those “establishments” covered under the definition of “establishment” under Section 3 (e) of the Act.
- Can the nature of employment affect the maternity benefits under the Maternity Benefits (Amendment) Act, 2017?
Pregnant working women entitled to Maternity Benefits, can’t be barred solely due to Nature of Employment.
This is upheld by the Allahabad High Court, in the case Dr. Rachna Chaurasiya Vs. State of U.P. and others on 29th May 2017.
The division Bench of the Allahabad High Court directed the State Government to grant maternity leave to all female with full pay of 180 days, irrespective of nature of employment, i.e., permanent, temporary/ad hoc or contractual basis. State respondent was further directed to grant Childcare Leave of 730 days to all female employees, who are appointed on regular basis, contractual basis, ad hoc or temporary basis having minor children with the rider that the child should not be more than 18 years of age or older.
- Under what type of employment can you seek Maternity Benefit under the Maternity Benefits Act, 1961 and Maternity Benefits (Amendment) Act, 2017?
Maternity benefit does not differentiate between permanent, temporary and contractual employees, so denying the benefit to any type of worker is against the law.
Casual/ Muster Roll employee
Courts have held that even women engaged on a casual basis, or on a muster roll basis on daily wages, are entitled to get the benefit of maternity leave at par with regular employees.
Contractual employee
Contractual employees are also entitled to 26 weeks of maternity leave. In the latest verdict by Supreme Court it was stated that maternity benefits must be granted regardless of whether they extend beyond the confines of a contractual employment term.
- Who can seek Maternity Benefits according to the Maternity Benefits Act, 1961?
According to Section 5 of the MBA, 1961 a woman can seek maternity benefits if she is::
- Pregnant for the first time
- Pregnant with one child or 2 children already
- Adopting a child below the age of 3 months
- Having a child through a surrogate
- Recovering from a miscarriage, abortion or tubectomy operation
Section 5(2) says that no woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit for a period of not less than 80 days in the twelve months immediately preceding the date of her expected delivery.