Maternity leave is the leave from the office when a woman is on leave because she is about to have or has just had (or adopted), a baby. Under the Maternity Benefits Act of 1961, a women employee is entitled to maternity benefits at the rate of her average daily wage for the period of her absence, for a maximum period of 26 weeks(from 29 Mar 2017 earlier was 12 weeks) or as per the HR policy of the company. This article discusses Maternity Leave, Maternity Benefit Act, How duration of Maternity Leave is calculated, about wages one will get, about Earned leave during Maternity Leave. It also shows Maternity Leave in some Private companies in India, Maternity Leave across the world. Will long Maternity Leave be used as a excuse by employers to hire fewer women or fire them when they apply for Maternity leave.
Table of Contents
What are Maternity Leave benefits?
Maternity leave in India is a paid leave of absence from work that allows women employees the benefit of taking care of their newly born, and at the same time retain their jobs.
The objective of maternity leave and benefit is to protect the dignity of motherhood by providing for the full and healthy maintenance of a woman and her child when she has recently delivered or adopted a child.
- Women after 1 Apr 2017 are entitled to 26 weeks of maternity leave(earlier was 12 weeks) for which they will be paid.
- This Act is applicable to all organizations that employ 10 or more persons both in the private sector and public sector.
- The six-month maternity leave benefit is only applicable for two surviving children.
- Women who opt for a child through surrogacy or adopt a baby below three months will be entitled to only 12 weeks of maternity leave.
- For mothers with more than two children, the maternity benefits will only cover 12 weeks.
- How she takes those 26 weeks depends on her. She can take all her Maternity Leave after the birth of her child. She can start her Maternity leave anytime in 8 weeks before her due date.
- One gets Maternity Leave also for miscarriage or medical termination of pregnancy
- An employer cannot dismiss a woman for taking maternity leave and cannot serve a termination notice to a woman on maternity leave which expires before the maternity leave ends. Also, an employer can’t change the terms of service to the woman’s disadvantage during her maternity leave.
- Expenses for Maternity are often covered in insurance offered by the employer up to some amount. Those with ESIC get some financial benefits too
After the Maternity Leave
- Mothers may be allowed to work from home beyond the 26-week maternity 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.
- Organizations with 50 employees will now have to mandatorily have crèches. Another option is for a few firms to set up a common facility within a prescribed distance.
- The employer will have to allow the mother to have four visits to the crèche which will include the interval of rest allowed to women employees.
How are 26 weeks of Maternity Leave calculated?
According to the Maternity Benefits Act 1961, a women employee is entitled to 26 weeks of which not more than 8 weeks(earlier was 6 weeks)s shall precede the date of her expected delivery. How she takes those 26 weeks depends on her. She can take all her Maternity Leave after the birth of her child. She can start her Maternity leave anytime in 8 weeks before her due date.
- When a woman dies during this period, before delivering the child, the maternity benefit shall be payable only for the days up to and including the day of her death.
- When a woman, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child
When can a women employee take Maternity Leave?
- In case of miscarriage or medical termination of pregnancy, a woman shall, on the production of such proof as may be prescribed, is entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.
- In case of tubectomy operation, a woman, on the production of such proof as may be prescribed, is entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately following the day of her tubectomy operation.
- A woman suffering from illness arising out of pregnancy, delivery, premature birth of a child (Miscarriage, medical termination of pregnancy or tubectomy operation) be entitled, in addition to the period of absence allowed to her leave with wages at the rate of maternity benefit for a maximum period of one month.
- Maternity Leave is also allowed for having a Child through Adoption or Surrogacy
Does the employee pay for delivery charges?
Many companies also offer health insurance benefits often covering maternity also up to some predefined limit and usually up to two children.
It can also be claimed by a male employee for his wife’s hospitalization expenses.
The maternity benefit is available for normal as well as C-section deliveries.
After how long can one claim maternity benefits depends on the company’s policies. Many offer the benefits as soon as one joins the company. But please check your company policy
Most employer’s group insurance policies cover hospital charges up to a fixed amount and pre-and post-delivery hospital stay for up to 60 days. Some insurance companies also cover the pre-and post-delivery charges.
But such policies don’t cover routine monthly check-ups and medical termination within 12 weeks of pregnancy. You can claim these expenses along with your other Medical Bills if your company provides the benefits.
If you are not covered by your employer’s group insurance, you can avail of family insurance provided by many insurance companies. However, most of these insurance schemes require that you are with them for at least 24 months before the pregnancy, and have paid three premiums.
What are the wages that one gets for Maternity Leave?
The average daily wage means the average of her wages during the three-month period immediately before her maternity leave starts. The company will pay the full wages and not just the basic salary. Wages for Maternity Benefit includes DA, HRA, other cash allowances, incentive bonuses. But it does not include following:
1) any bonus other than incentive bonus
2) overtime earnings & any deduction or payment on a/c of fines
3) any contribution to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force
4) any gratuity payable on the termination of service.
If you need it, the law allows for up to a month of sick leave if the illness or problem requiring leave is because of your pregnancy, delivery or premature birth. During this month, you are entitled to your usual wage. But you will need to submit proof of the illness.
Does one get Earned or Paid Leaves during Maternity Leave?
This is a grey area. Depends on the organization.
Many feel that Earned or Paid Leave is credited on account of an employee’s presence on the duty. But Maternity Leave is not considered as leave. It is a social benefit being provided through the Maternity Benefit Act for a period that is regarded leave irrespective of actual physical absence from duties. So a women employee will get Earned Leaves during her Maternity Leave.
But In many organizations, The entire period availed as maternity leave would be taken into account for the purpose of calculation of 240 days of continuous service which is the eligibility criterion for EL to be availed in the succeeding year. Yet, as the employee does not work actually during these days of maternity leave, she will not earn any leave on these 26 weeks
Our article covers various kinds of leaves Casual Leave, Earned Leave, Sick Leave: Leaves in India in detail
Medical Bonus during the Maternity Benefit.
A pregnant woman worker is entitled to a maternity benefit,in the form of a medical bonus, of Rs 1000 if no prenatal confinement and post-natal care are provided by the employer free of charge. It can be increased to a maximum limit of Rs 20,000.
The Central Government is authorized to increase the basic amount every three years. In August 2008, the amount of medical bonus was Rs 2500 which has been later raised in 2011 to Rs 3500. (Note: Bonus under the ESI Act is Rs 5000)
How to Claim Maternity Leave?
A woman employee is required to give her employer notice in writing/apply on the leaves portal asking for maternity leave and benefits.
The exact process depends on the HR policy of your company.
Discuss it with your manager as soon as you are pregnant. To plan the work during the pregnancy, transition plan before maternity
Can one extend the Maternity Leave?
If the employee becomes ill due to any of the illness arising out of pregnancy/delivery then she is entitled to an additional 30 days leave with wages under the Maternity Benefit Act. One needs to submit proof of illness and the employer has to agree to it.
If after Maternity leave if a women employee requires more days leave that can be adjusted with her available leave balance depending on company HR Leave Policy. Some companies allow women employee to club her Casual Leave(CL)/Sick Leave(SL) /Earned Leave(EL), which she has to her credit, with Maternity Leave. Many do not allow Sick Leave or Casual Leave to be clubbed with Maternity Leave.
Maternity Benefit Act
THE MATERNITY BENEFIT ACT, 1961 (53 OF 1961), is an act to regulate the employment of women in the private sector for a certain period before and after child birth and to provide for maternity benefit and certain other benefits. It became effective from 12 Dec 1961.
Earlier the Maternity benefit was for 12 weeks. On 29 Mar 2017 President signed the Maternity Benefit Amendment bill to extend the benefits to 26 weeks.You can read the act here.(pdf) and Amendment in 2017 here.
Under the Maternity Benefits Act of 1961, a women employee is entitled to maternity benefits at the rate of her average daily wage for the period of her absence, for a maximum period of 26 weeks(earlier was 12 weeks). She can claim Maternity Leave only if she has worked at least 80 days for her employer in the last 12 months. HR policies for Maternity Leave vary from company to company. Please check with the HR department of your company to find out more about its policy on maternity leave.
- The average daily wage means the average of her wages during the three-month period immediately before her maternity leave starts.
- The law also states that from 10 weeks before the women’s employee’s due date, she will not have to do arduous work, stand for long hours or be asked to do any other work that may cause problems. A working woman also has the right to ask for light jobs during pregnancy for eg., jobs that do not require long standing hours or work in sections where hazardous substances are not used as per the maternity benefit act.
- If a women employee miscarries, she is entitled to 12 weeks of leave and wages.
- India now qualifies among the 16 countries having the longest paid leave for new mothers. Ref: Lok Sabha Question
Maternity leave in Government Jobs
Women employed in government jobs in India get a six-month maternity leave as per the Central Civil Service (Leave) Rules 1972. The last circular in this regard was issued in 2008, when it was increased from four-and-a-half months. Moreover, women government employees are allowed to take childcare leave of up to two years in phases at any point till their child turns 18 years old. The Seventh Pay Commission recently recommended that only the first 365 days of leave should be granted with full pay, while the remaining 365 can be availed at 80 per cent of the salary. Memorandum from the Department of Personnel and training can be read here.
Alternatives to the Maternity Benefits Act
In lower-income jobs, the Employees’ State Insurance, a self-financing social security and health insurance scheme for workers, maybe an alternative source of maternity benefits. The ESI is due to employees earning Rs. 15,000 or less per month, with the employer contributing 4.75 percent and the employee contributing 1.75 percent. Those who qualify may receive maternity benefits under the ESI scheme instead of the Maternity Benefits Act. In order to be eligible for maternity benefit under ESI Act, 1948, an insured woman should have contributed/contribution payable for not less than 70 days in the last two consecutive contribution periods i.e. one year. ESIC website covers details of Maternity Benefit.
Can a women employee on probation apply for Maternity Leave?
Women on probation can apply for maternity leave if she meets following conditions.
- Every woman employee, whether employed directly or through a contractor, who has actually worked in the establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery, is entitled to receive maternity benefit.
- The qualifying period of 80 days shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of immigration.
- For calculating the number of days on which a woman has actually worked during the preceding 12 months, the days on which she has been laid off or was on holidays with wages shall also be counted.
- There is neither a wage ceiling for coverage under the Act nor there is any restriction as regards the type of work a woman is engaged in.
Employer and Maternity Leave Problems
Can an employer dismiss a women employee because she is pregnant?
An employer cannot terminate a women employee while she is expecting or is on maternity leave, This is unlawful. Most companies have policies preventing discrimination against pregnant women, but there have been cases of discrimination where women have been pressurised into giving up work. If you feel your employer is not applying the law properly, take legal advice. While you can go and complain to the labour department, but that rarely does much good. However, try to work out an amicable solution with HR.
If you do go and complain, you can no longer work for them as they will make life miserable for you after you join, and you will have a problem getting another job as you can not give a reference. You need to decide if you want to continue with such a company after you are ready to work again and take a decision on basis of that. At times it may simply be a good idea to say good bye to a bad company and move on, even if it is at a financial loss in the short term.
Penalty for the employer for not giving Maternity benefit to the employee
The act provides that, no employer shall dismiss, discharge or reduce or otherwise punish a woman employee during the period she is in receipt of maternity benefit. If an employer does not provide the maternity benefit, the employer may be fined. The fine, in this case, may extend up to Rs .5,000. Moreover, an employer may be held liable to pay as much as Rs.20,000 on failing to provide free medical care to expectant employees. For discharging or dismissing such a woman during or on account of her absence from work, the employer shall be punishable with imprisonment which shall not be less than 3 months, but it will extend to one year.
Also, the appropriate Government may appoint inspectors for the purposes of this Act defining their jurisdiction limits.
Complaint under Maternity Benefits Act 1961
The Central Industrial Relations Machinery (CIRM) in the Ministry of Labour is responsible for enforcing this Act. CIRM is an attached office of the Ministry and is also known as the Chief Labour Commissioner (Central) [CLC(C)] Organisation. The CIRM is headed by the Chief Labour Commissioner (Central).
No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offense under this Act and no such complaint shall be filed after the expiry of one year from the date on which the offense is alleged to have been committed.
What are the implications of long maternity weeks of 26 weeks?
Giving women 26 weeks of paid maternity leave is a great, bold move that sends the right message, but six months is a long time in anyone’s career today. Right now, even going on three months of leave places several challenges on women when they want to get back to work. It can affect their career map. Even with the 12 weeks of Maternity leave, In India, many women(around 37%-48%) leave their job because of family responsibilities. Those who do return to work after maternity leave often ends up taking more childcare leaves to cope with the responsibilities of motherhood, and find that it affects promotion and appraisal prospects at work.
With an extended 14 weeks of maternity leave, from 12 weeks to 26 weeks, many fear that for six months, if other staff members learn to manage without the employee on leave, companies might wonder if that person is dispensable. Some fear women who work in more person-dependent roles, ones that require building relationships with clients, for instance, could face trouble getting re-absorbed by companies that are not progressive enough.
The excerpt of Overview of Maternity Leave is shown in the image below. Click here or on image to see the full overview.
Paternity leave is paid or unpaid leave given to a male employee when a child is born. While paternity leave is authorized for government employees there is no law that instructs the private sector to make it obligatory.
Individual organizations decide whether or not they would like to extend the facility of Paternity Leave. There is no legal requirement in regards to granting Paternity Leave to anyone.
Thus, on the one hand, you have Cisco Systems (India) which grants its employees 12 weeks paternity leave and on the other, you have Infosys which offers 5 days of paid leave
Maternity Leave in some Private companies in India
Companies like Flipkart, Accenture, Godrej and HUL had been offering six months of maternity leave well before the amendment of the policy came into consideration.
- Bharti Airtel: increased maternity leave for women employees to 22 weeks, from 12 weeks. Airtel promised other benefits and flexible work options to ensure a smooth transition to full-time work and day care facilities.
- Flipkart: Offers an extended maternity leave of 24 weeks, Flipkart also encourages women employees to avail benefits of their flexible working hours (with full pay) for as long as four months after their maternity leave. If needed, women can also take a 1-year career break without pay at Flipkart.
- Microsoft : As of February 1, 2016, Microsoft India is offering 6 months maternity leave, extended from 3 months’ leave,to its women employees. The company is also offering 2 weeks paternity leave to new fathers. This is in addition to Microsoft India offering women employees the option of availing unpaid leave for up to three months and flexible work arrangements for up to two years. Additionally, to care for adopted children, mothers will be eligible for eight calendar weeks of paid leave, while fathers are eligible for two weeks of paid leave.
- Nestle: Nestle India has extended its maternity leave policy to 6 months, effective February 1, 2016, from the previous leave of 18 weeks, while granting adoption leave for six weeks with full pay and benefits for all permanent women employees. Besides, a paternity policy has been introduced with a leave of five working days with full pay and benefits for all permanent male employees.
Maternity leave around the world
The International Labour Organisation recommends a minimum standard maternity leave of 14 weeks or more, though it encourages member states to increase it to at least 18 weeks. At 26 weeks, India is set to join the league of 42 countries where maternity leave exceeds 18 weeks. It, however, falls behind several East European, Central Asian and Scandinavian countries, which have the most generous national legislation for paid maternity leave.
At present India qualifies among the 16 countries having the longest paid leave for new mothers. The Maternity Leave in other countries is given below and a map of maternity leave is also shown.
- India: 26 weeks at full pay (Image is of 2015 so it does not reflect the updated status)
- UK or England: 39 weeks of paid leave
- China: 14 weeks, paid the average wage at the company
- US: 12 weeks, employers not obliged to pay anything
- Canada: 15 weeks paid leave; can take up to 52 weeks of leave
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Do you think 26 weeks of Maternity Leave is OK? What should the organizations do to make women return to the job after maternity leave smoothly? Have you faced pressure from your employer on resigning when you have applied for maternity leave?