The Maternity Benefits Act, 1961 (“Act”), provides for paid maternity leave for women working in the organized sector in India, before and after child birth. In light of the recent amendments proposed through the Maternity Benefits Amendment Bill, 2016 (“Bill”), which has been introduced and passed in the Rajya Sabha recently, we wish to bring out in this post the key changes that the amendment is set to introduce and an analysis of the potential impact thereof. The Act is applicable to all establishments which are factories, mines, plantations, government establishments, shops and establishments under the relevant applicable legislations, or any other establishment as may be notified by the central government. 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. As of now, the total period of paid maternity leave that may be availed of is 12 weeks out of which a maximum of 6 weeks’ leave may be taken prior to the delivery. Payment during the leave period is based on the average daily wage for the period of actual absence. Pursuant to the July, 2015 suggestions of the Indian Labour Conference (ILC) (46th Session of Indian Labour Conference, July 2015, Ministry of Labour and Employment) and the August, 2015 recommendations of the Law Commission of India (Report no. 259: Early Childhood Development and Legal Entitlements, August 2015, Law Commission of India), the Bill seeks to bring forth the following key changes in the Act:
- In consonance with global standards and in response to long standing demands in this regard, the applicability of the Act is sought to be extended to not just women who give birth, but also women who have children through surrogacy (defined under the Bill as “Commissioning Mother”) and adoption.
- The Bill extends the total period of paid maternity leave from the present 12 weeks to 26 weeks (exceeding the International Labour Organisation’s minimum standard of 14 weeks), out of which a maximum of 8 weeks’ leave may be taken prior to the delivery. However, the benefit of 26 weeks’ maternity leave with pay is only available to women having two children or less and not to women having a third child or adopting a child or having a child via surrogacy, for whom the leave is restricted to 12 weeks (maternity benefit starting from the date that the child is handed over to the mother in case of surrogacy and adoption).
- The Bill also mandates that every establishment with at least 50 employees shall provide crèche facilities (within a specified distance as may be prescribed) with 4 permissible visits in a day to the crèche by the women.
- In a more pragmatic attempt, the Bill also formally recognises the concept of working from home and provides that in case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.
- The Bill also introduces a requirement for informing all woman employees, in written as well as electronic format, of all benefits under the Act, at the time of their appointment.
However, the Bill still falls short of acknowledging and inserting effective provisions with respect to the following other changes that have become the need of the hour:
- The recommendation of the Law Commission to bring in women from the unorganised sector under the ambit of the Act.
- Making the Act gender neutral by recognising the internationally acclaimed concept of ‘paternity leave’, such that there is a gradual but sure movement towards both parents being considered as primary caregivers, instead of the mother only, more so in cases of single male parents. This omission is also being severely criticized for seemingly reinforcing patriarchal gender roles.
- The period of leave that may be availed by a natural mother as opposed to an adoptive or surrogate mother may become another point of contention, as the pre-delivery leave is restricted to a maximum period of 8 weeks, post-delivery leave of 18 weeks should have logically been made uniform for all mothers.
- The Bill does not provide for any government support in financing maternity benefits, which is not in consonance with the International Labour Organisation (ILO) Maternity Protection Conventions which call upon state aid for employers so as to support them better in providing maternity benefits. It is implied therefore that the employers would be primarily responsible for bearing the costs of the maternity benefits and the impact that this may have on corporate houses hiring women employees remains to be seen.
Potential Positive Impact of the Proposed Amendment
The World Health Organisation (WHO) recommends that infants be exclusively breastfed by the mother for the first 24 weeks to improve their survival rates and for the healthy development of both mother and child (Infant and young child feeding: Factsheet, World Health Organisation, September, 2016). As such, the Bill is indeed a praiseworthy step in the direction of improving and safe-guarding pre-natal and post-natal healthcare of both mother and child. Authors: Sahithi Shyam, Senior Associate and Sohini Mandal, Junior Partner