India: Notification Of The Maternity Benefit (Amendment) Act, 2017: The Key Impacts

Last Updated: 19 April 2017
Article by Raunak Singh

INTRODUCTION

On account of certain distinctive qualities bestowed upon women by nature, the law makers across the globe have been witnessed to implement certain special protections and benefits to the female section of the workforce. Further, the legislative bodies from time to time have attempted to redesign the said protections and benefits in order to keep a pace with the growing female population in the global workforce. The Maternity Benefit (Amendment) Act, 2017 ("MB Amendment Act") which came into force on April 01, 2017, amending some of the key benefits mandated under the Maternity Benefit Act, 1961 ("MB Act") may qualify as one of such attempts. The MB Amendment Act has extended the earlier available maternity leave period of 12 weeks to 26 weeks, thereby exceeding the international standard of 14 weeks' maternity leave as recommended by the International Labour Organization.

Besides outlining the key aspects of the MB Amendment Act, this article makes an attempt to analyze the anticipated impacts which our society may be subjected to on account of the said amendments.

AMENDMENTS CARRIED OUT TO THE MB ACT

  • Duration of paid maternity leave [Section 5(3)]: This is one of the most significant piece of amendment, whereby the existing maternity leave period of 12 weeks (of which not more than 6 weeks should have preceded the expected date of delivery) has been extended to 26 weeks (of which not more than 8 weeks shall precede the expected date of delivery). However, the paid maternity leave applicable to female employees with two or more surviving children has been restricted to 12 weeks (of which not more than 6 weeks shall precede the expected date of delivery).
  • Commissioning Mothers/ Adopting Mothers [Section 5 (4)]: The MB Amendment Act has extended the benefit of maternity leave (for a period of 12 weeks) to (a) the female employees who legally adopt a child below the age of three months and (b) commissioning mothers. The term 'commissioning mother' has been defined to mean a biological mother who uses her egg to create an embryo implanted in any other woman.
  • Work from home [Section 5 (5)]: The MB Amendment Act has given recognition to the concept of 'work from home'. Accordingly, post maternity leave, if the nature of the work permits, the employer may allow its female employees to work from home. The terms and conditions for such work from home are to be decided mutually by the employer and the female employee so concerned. However, the said provision has not been enforced yet and shall come into force on July 01, 2017.
  • Creche Facility [Section 11A (1)]: The MB Amendment Act requires every establishment with 50 or more employees to have a creche facility within the prescribed distance for their employees. Also, the employer is required to permit the female employee so concerned to visit four times a day to the creche.
  • Details of Benefits [11A (2)]: The MB Amendment Act makes it compulsory for every establishment to intimate its female employees of all the benefits available under the MB Act at the time of their initial appointment. Moreover, the details of the benefits available under the MB Act shall be given in writing and electronically to the female employees.

BROAD ANALYSIS OF KEY CHANGES

Time and again expert bodies and international organizations have recommended for minimum 24 weeks of maternity leave to protect the maternal and child health. Thus, the benefits extended to female employees by way of the MB Amendment Act may said to be a step forward towards women empowerment. However, a close analysis of the said changes, as discussed below, may suggest that the same may not qualify as a very balanced approach from the law makers.

  • Additional cost for the employer: The extension of maternity leaves, as introduced and mandated by the MB Act shall certainly act as a direct cost to the employers. Additionally, the requirement of creche facility shall further surge the cost borne by the employers. Therefore, it will not be out of place to conclude that the government has conveniently extended and added the said benefits solely at the cost of the employers. Unlike the aforesaid, in many countries where paid maternity leaves are granted for such long durations, it is not only the employer who is burdened with the entire cost of such benefits. Rather, the government of these countries have adopted different mechanisms with an objective that the employer alone is not subjected to the entire financial burden. For instance, where in some countries cash benefits are paid to the pregnant women through national social security benefits, in others, the government shares the burden with the employer.
  • Decline in female population from the workforce: One of the biggest threat that the MB Amendment Act poses could be a reluctant approach of employers to hire female employees due to enhanced cost burden over the employer. The said job threats for the female section of employees may have an adverse impact on the society at large, thereby resulting into a decline in the overall female population in the workforce.
  • Ease of doing business: India has been struggling to qualify as an investor friendly destination for foreign investments. Recently, India was ranked at 130th position out of 190 countries in the World Bank's 'ease of doing business' ranking for 2017. Such initiatives adding to the cost of business may not be helpful for the economy from the investment perspective.
  • Work from home: The language of the statutory provision allowing 'work from home' to female employees does not seem to have a binding effect on the employers. In the absence of this provision also, employers were very much entitled to allow their employees to work from home. Therefore, the said provision doesn't seem to add much to the list of benefits for female employees.
  • Non-applicability to unorganized sector: The applicability of MB Act is limited to establishments with 10 or more employees besides other notified establishments, thus keeping the majority of the workforce i.e. woman of unorganized sectors, outside the ambit of the said enactment. In spite of the Law Commission of India, recommending to bring the working females of unorganized sectors within the ambit of the MB Act, the same has not been taken into consideration under the MB Amendment Act.
  • Non-recognition of paternity benefits: The MB Amendment Act is silent with respect to paternity benefit, contrary to the suggestions made by the International Law Commission, so as to end the stereotype thinking that upbringing a child is only female's job. No benefits have been extended on paternity grounds in order to aggravate the gender gap.

CONCLUSION

The MB Amendment Act seems to be a welcome step, as on one hand it encourages female employees to be absorbed in the workforce and on the other hand it incentivizing those already working. It further tries to introduce uniformity in the maternity benefits by providing at par maternity benefits to the employees in private sectors as compared to those working in the government sector.

However, the same is receiving mixed reactions from the different sectors of the society on the grounds discussed above. This surely indicates that interests of all the stakeholders have not been taken into consideration while carrying out the said changes. To conclude, designing of the MB Amendment Act lacks an innovative and thoughtful approach in terms of government's socio and economic objectives.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions