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The Coffee Break Guide to Compliance – Vol. 12

Posted by: on 30 August 2018 in Amendments, Human Capital Management

This post is part of the Coffee Break Guide to Compliance by Anandan Subramaniam. Please subscribe to the blog updates if you’d like to be notified of these posts. Please comment below with your doubts and queries.

The Coffee Break Guide to Compliance – Vol. 12 {A Deep Dive into Maternity Benefits Available to Women Employees}

Maternity Benefit, 1961 regulates paid maternity leave entitlement for Women Employees, among other benefits, who are employed in factories, mines and shops & commercial establishments that employ 10 or more employees. Similarly, under the ESI Act, Maternity Benefit is available to eligible, covered Employees.

Eligibility Criteria for Maternity Benefits

No Woman shall be entitled to maternity benefit unless she has actually worked in an establishment, of the Employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery, under the Maternity Benefit Act, 1961.

Whereas, under the ESI Act, an insured Woman Employee shall be eligible for maternity benefit if she has remitted contributions for seventy days in the preceding two contribution periods. (i.e. April to September & October to March).

Consequent to the amendment to the Maternity Benefit Act in the year 2017, as well as in the ESI Act, maternity benefit applicability is classified into the following categories:

1. Eligible Employees who are contributing to ESIC would be covered under ESI.

2. Eligible Employees who are not contributing to ESIC are covered under Maternity Benefit Act, 1961

With reference to above two points, subsequent to the recent Amendment in the Maternity Benefit Act in the year 2017 and ESI Act, the maximum period entitled to maternity benefit by a Woman shall be TWENTY SIX weeks, of which not more than EIGHT weeks shall precede the date of expected delivery.

Provided that the maximum period entitled to a Woman having two or more than two surviving children shall be TWELVE weeks, of which not more than SIX weeks shall precede the date of expected delivery.

3. In case of miscarriage or medical termination of pregnancy, a Woman shall, on production of such proof as may be prescribed, be 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

This benefit is available in both Maternity Benefit Act and ESI Act.

4. If a Woman entitled to maternity benefit or any other amount under this Act dies before receiving such maternity benefit or amount, or where the Employer is liable for maternity benefit, the Employer shall pay such benefit or amount to the person nominated by the Woman in the notice given, and in case there is no such nominee, to her legal representative.

This benefit is available in both Maternity Benefit Act and ESI Act.

5. A Woman suffering from illness arising out of pregnancy, delivery, premature birth of child, [miscarriage, medical termination of pregnancy or tubectomy operation] shall, on production of such proof as may be prescribed, be entitled, in addition to the period of absence allowed to her, to leave with wages at the rate of maternity benefit for a maximum period of one month

This benefit is available in both Maternity Benefit Act and ESI Act.

6. Commissioning Mother covered under the Maternity Benefit Act, 1961: A Woman Employee who is a commissioning mother shall be entitled to maternity benefit for a period TWELVE weeks from the date the child is handed over to her.

Who is a commissioning mother? A commissioning mother has been defined as a biological mother who uses her egg to create an embryo planted in any other woman. In surrogacy, one woman (surrogate mother) carries a child for another (the commissioning mother) as the result of an agreement which is made before conception that the child should be handed over after birth.

7. Eligible employees covered under Maternity Benefit Act, 1961 and legally adopting a child: A Woman Employee who legally adopts a child below the age of three months shall be entitled to maternity benefit for a period of TWELVE weeks from the date the child is handed over to her.

8. Eligible employees covered under Maternity Benefit Act, 1961, who undergoes tubectomy operation. A Woman Employee shall, on production of such proof as may be prescribed, be 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.

9. Medical bonus during confinement: Every Woman entitled to maternity benefit under this Maternity Benefit Act, 1961 shall also be entitled to receive from her employer a medical bonus, of Rs.3,500, if no pre-natal confinement and post-natal care is provided by the Employer free of charge.

In case the establishment has had less than 10 persons in the preceding twelve months, maternity benefit is not mandatory under the Maternity Benefit, Act, 1961. In such establishments, it is the Management’s decision to pay the maternity benefit.


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