Maternity benefits to women in the Unorganised Sector

Context (PIB): The Ministry of Labour & Employment has announced updates regarding maternity benefits for women working in the unorganised sector.
The Maternity Benefit Act, 1961, as amended vide the Maternity Benefit (Amendment) Act, 2017 provides for maternity benefits.
The maternity benefits are also provided to women workers who are covered under the provisions of the Employees’ State Insurance (ESI) Act, 1948.
Section 45 and Section 109(1) of the Code on Social Security, 2020 already provides for provisions regarding framing of welfare scheme(s) including health and maternity benefits for these workers.

Maternity Benefit Act, 1961

The Maternity Benefit Act of 1961 provides maternity benefits in the form of maternity leave for all women employees.
The act provides comprehensive maternity benefits, including medical bonuses, paid leave and nursing breaks.
Applicability: It applies to various establishments, including factories, mines, plantations, and shops or establishments where ten or more persons are employed.
- In 1973, it was extended to “any such establishment belonging to the Government” and “every establishment where persons are employed for the exhibition of equestrian, acrobatic and other performances.”
Initially, the act applied to factories, mines, and plantations.
Paid maternity leave: Women were entitled to maternity leave not exceeding 12 weeks.
Eligibility: To avail of maternity benefits, a woman had to work in the establishment for at least 160 days in the 12 months preceding her expected delivery date.
Prohibition of employment: No employer could knowingly employ a woman during the 6 weeks immediately following her delivery or miscarriage.
Violating provisions of the act could result in 3 months’ punishment, with or without a fine.

Maternity leave is a paid leave provided to expecting or pregnant women who can utilise it before and after the delivery of the child.

Maternity Benefit (Amendment) Act, 2017

It amends the Maternity Benefit Act of 1961.

Applicability

The Maternity Benefit Act applies to all women employed in private companies, government jobs, mines, plantations, factories, and organisations with 10 or more employees.
It does not apply to self-employed women.
A woman is eligible to take maternity leave under the act only when she has worked with the employer for at least 80 days in the 12 months preceding her expected delivery date.

Rules

Extended maternity leave: Biological mothers now enjoy 26 weeks of paid leave.
- For the first and second child, it is 26 weeks, with the option to commence up to 8 weeks prior to the expected delivery date.
- For the third child onwards, eligibility is reduced to 12 weeks of maternity leave.
Adoptive and commissioning mothers: Those legally adopting a child below 3 months receive a 12-week maternity benefit period from the date of receiving the child.

A commissioning mother is a biological mother who uses her egg to make an embryo placed in another woman.

Work-from-home provision: Women can work from home after the expiry of the 26-week leave period, if their assigned tasks allow it and by mutual agreement between the employer & employee.

Creche facility: Establishments with 50 or more employees must provide a creche facility, allowing women to visit their child (4 times) during work hours.
Miscarriage or Medical Termination: A woman is entitled to 6 weeks of leave, starting immediately after the incident, subject to the provision of necessary proof.
Extended Leave for Complications: Additional leave can be granted on a case-by-case basis if a new mother requires more time for recovery due to complications arising during delivery or pregnancy.
Employers must pay full salary to the woman employee during her maternity leave period.
- This salary rate is calculated according to her actual salary or daily wages in the 3 months prior to her maternity leave request.
Employers should not employ a woman during the 6 weeks immediately following her delivery or miscarriage.