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Explanations to various specific queries – Benefits under the Maternity Benefit Act, 1961

Posted by: ADP on 22 January 2019 in Compliance, HR, 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. 27 {Explanations of various specific queries – Benefits under the Maternity Benefit Act, 1961}

Do Trainees are covered under the Maternity Benefit Act?

As per Section 3 (o) “woman” means a woman employed, whether directly or through any agency, for wages in any establishment.  Hence trainees are covered under the Maternity Benefit Act.

Do Contractual employees or Consultant Woman get the benefit for a full period in case of termination of the contract in between?

Dr. Artiben R. Thakkar vs. Delhi Pharmaceutical Sciences & Research University, 2018 LLR 1293 (Del. HC)

In a case pertaining to this (Dr. Artiben R.Thakker vs. Delhi Pharmaceutical Sciences and Research University, 2018) Dr. Artiben R. Thakkar vs. Delhi Pharmaceutical Sciences & Research University, 2018 LLR 1293 (Del. HC)Dr. Artiben R. Thakkar vs. Delhi Pharmaceutical Sciences & Research University, 2018 LLR 1293 (Del. HC)Dr. Artiben R. Thakkar vs. Delhi Pharmaceutical Sciences & Research University, 2018 LLR 1293 (Del. HC)The Hon’ble Delhi High Court has ruled that “It is an elementary rule of service jurisprudence that benefits attached to service come to an end once the service tenure is completed.  So, it would be neither prudent nor reasonable to assume or presume that benefit of social enactment would flow even after the service tenure comes to an end”.  Hence Benefit ceases when the service comes to an end.

Work from Home – Upon expiry of Maternity leave, whether a woman employee is eligible to claim, as a matter of right, to work from home?

As per the Amended Act provisions it as an ‘option’.  The conditions provided in such provisions are:

  • the nature of work is such that a woman employee may work from home
  • the employer may allow so to a woman employee (who has availed the maternity benefit)
  • for such period and on such conditions as the employer and the woman may mutually agree

What is the Benefit payable to ‘woman’ under the Act?

 As per section 5 of the Act, every eligible woman shall be entitled to the payment of maternity benefit, at the rate of average daily wage for the period of her actual absence.  The average daily wage means the average of the woman’s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity.

Whether PF needs to be deducted during Maternity period?

Section 3 (n) “wages” means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes– such cash allowances (including dearness allowance and house rent allowance), incentive bonus, but does not include— (i) any bonus other than incentive bonus; (ii) over-time earnings and any deduction or payment made on account of fines; (iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force.  Hence, it is not required to deduct and remit contribution towards PF during such period. But if the employer wishes to make, it shall be accepted by PF. 

In case of a woman employee availing Maternity benefit, the employer should ensure the Muster Roll is marked with “Maternity Leave” for the days’ such woman was absent.

A woman employee availing Maternity Benefit, on her own choice submits resignation. Can the employer accept it?

As per section 12, only the dismissal or discharge is unlawful.  If the employer is convinced that the resignation is on her own choice, it may not attract this provision. Physically documented, signed resignation letter from such a woman employee, will support the employer in case of any maternity related litigation.

From when Maternity Benefit is applicable to Adopting and Commissioning mothers?

As per the newly amended insertion of provision Section 5(4), the entitlement of maternity leave shall be for a period of 12 weeks from the ‘date the child is handed over to her’.

Do adopt and Commissioning mothers eligible for Medical Bonus?

As per section 8, every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus, of Three Thousand Five Hundred, if no pre-natal confinement and post-natal care are provided for by the employer free of charge.  Where pre-natal confinement is infructuous in case of Adopting and Commissioning mothers, the woman employees are allowed to avail maternity leave from the date the child is handed over to them to take postnatal care. Hence Adopting and Commissioning mothers are not eligible for Medical Bonus.

A woman had 2 miscarriages and third time delivered baby.  Whether the Maternity leave is 26 weeks or 12 weeks as per the new provision, Section 5(3)?

It is clearly stated that in the newly inserted proviso 5(3), that the entitlement is restricted, to 12 weeks, only if the woman is having two or more than two surviving children.  Hence The Woman employee is eligible for 26 weeks, in the above case.

Proviso 5(3): ‘‘Provided that the maximum period entitled to maternity benefit by 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 her expected delivery;’

Nursing break – to whom?

As per section 11 of the Act, every ‘woman who delivered a child’ and who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of prescribed duration for nursing the child until the child attains the age of fifteen months. 

In the above situation, it is not applicable to Adopting and Commissioning mothers.

Whether Crèche facility needs to be extended to Male employees, who are taking care of their child?

The Maternity Benefit Act is a social enactment applicable to Women employees.  And as per the recent amendment inclusion, it is mandatory for the employer to provide the Crèche facility to children of a woman. Providing the facility to Male employees is at the discretion of the Employer, which is not mandated by any law.


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TAGS: Anandan Subramaniam Maternity Benefits Payroll and Compliance The Coffee Break Guide to Compliance

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