Maternity Benefit Act, 1961

What Is the Maternity Benefit Act, 1961?

The Maternity Benefit Act, 1961 was passed on December 12, 1961, to protect a woman’s job and income around pregnancy and childbirth. It does three things:

• Protects her job during and after pregnancy, so she can’t be dismissed or treated unfairly because of it.
• Gives her paid leave to recover physically and bond with her child.
• Puts practical support in place, like nursing breaks and crèche access, so coming back to work isn’t a struggle.

The Act applies to any factory, mine, plantation, or shop and establishment that employs 10 or more people on any day in the past 12 months. It covers women hired directly by the company, and women hired through a contractor or staffing agency.
For example, if a 30-person IT company hires some women through a staffing agency, it still has to provide maternity benefits to those women.
States can extend the Act’s coverage further through their own notifications, so it’s worth checking local rules if you operate in more than one state.

Key Provisions and Entitlements

To claim maternity benefit, a woman must have worked at least 80 days in the 12 months before her expected delivery date, as set out in Section 5(2) of the Act. Once that’s met, here’s what she’s entitled to:

• First or second child: 26 weeks of paid leave. Up to 8 of those weeks can be taken before delivery, with the rest taken after.
• Third child onward: 12 weeks of paid leave, split evenly before and after delivery.
• Adopting or commissioning mothers: 12 weeks of paid leave, starting from the date the child (under 3 months old) is adopted or commissioned.
• Miscarriage or medical termination of pregnancy: 6 weeks of paid leave.
• Tubectomy: 2 weeks of paid leave.

For instance, if a woman on her first pregnancy who has worked 90 days in the past year qualifies for the full 26 weeks, even if she’s a contract employee rather than a permanent one.
How much is the benefit itself? Under Section 5, it’s calculated on her average daily wage over the 3 months before her leave, or the minimum wage, whichever is higher. This makes sure she isn’t short-changed even if her recent pay happened to be lower than usual.
Also, every woman gets two extra 15-minute breaks a day to nurse her child, until the child turns 15 months old. Establishments with 50 or more employees must also provide a nearby crèche, with up to 4 visits a day counted as working hours.

2017 Amendment: Key Changes

The Maternity Benefit (Amendment) Act, 2017 changed the law significantly. Most of it took effect on April 1, 2017; the provision for adoptive and commissioning mothers followed a few months later, from July 1, 2017.

• Leave went from 12 weeks to 26 weeks, for women with fewer than two surviving children. This put India among the more generous countries globally on paid maternity leave.
• It introduced the crèche mandate (Section 11A) for establishments with 50 or more employees, along with the four-visits-a-day rule.
• It added the 12-week leave provision for adoptive and commissioning mothers, recognising more paths to parenthood than before.
• It gave women the option to work from home after their leave ends (Section 5(5)), if their role allows for it and their employer agrees.

Everything else, like how the benefit amount is calculated and the requirement to keep records, stayed the same. States also kept the ability to set some of their own enforcement rules, which is why practices can vary a bit depending on where a company operates.

Compliance and Penalties

Under Section 21, if a company is found in violation, the people actually in charge at the time, directors, HR heads, finance heads, can be held personally responsible too, unless they can show they had no knowledge of it and no part in it.
One more thing worth knowing: under Section 6, a woman needs to give her employer written or verbal notice before going on leave. This is basically to inform when she’ll start and confirm she won’t work elsewhere during the period she’s receiving the benefit. An employer can’t withhold payment just because this notice was informal rather than in writing.