The Maternity Benefit (Amendment) Act, 2016 (“Amendment Act”), which was passed by Parliament on March 9th, 2017, introduced certain significant changes to the Maternity Benefit Act, 1961 (“MB Act”). The Amendment Act received Presidential assent on March 27th, 2017 and came into effect from April 1st, 2017 except for the provisions, that require an employer to provide a creche facility. These are scheduled to become effective from July 1st, 2017.

Subsequent to the introduction of the Amendment Act and clarifications issued by the Ministry of Labour and Employment on April 12th, 2017 (“Clarification”), several questions have been raised by companies with respect to their obligations as employers under certain aspects of the Amendment Act.

While our Firm has reached out to the Ministry of Labour and Employment requesting clarifications on specific aspects that the Ministry may be contemplating, the purpose of this note is to share our views on the Amendment Act / Maternity Act in the specific context of clarity being sought on certain aspects.

Definition of “Woman” and Applicability of the MB Act

  • Are benefits under the MB Act also applicable to consultants?

Section 3(e) of the MB Act defines “woman” as a woman employed, whether directly or through any agency. While the Clarification does not go into specifics on this aspect, it seems that given this definition, a woman engaged as an independent consultant would not have the benefit of the MB Act. Needless to mention, in the light of certain judicial pronouncements, exceptions involving certain types of consultant engagement may have to be examined.

  • Whether women who, as per the old law, have completed their 12 weeks of maternity leave prior to April 1st, 2017, will be entitled to the enhanced benefit of 26 weeks of maternity leave?

Given the response provided in the Clarification, a woman employee who has completed 12 weeks of maternity leave prior to April 1st, 2017 will not be entitled to the enhanced benefit of 26 weeks of maternity leave.

Manner of Taking the Enhanced Benefit

  • Can the enhanced benefit of 26 weeks only be used in one stretch or could it be taken in a staggered manner or in phases?

The Amendment Act only enhances the period of maternity benefit, without changing the manner in which such maternity leave can be taken. Therefore, Section 5(3) of the Amendment Act which prescribes that not more than eight weeks of maternity leave should be availed by the woman preceding the date of her expected delivery, and the remaining eighteen weeks following the delivery would still be relevant.

Adopting and Commissioning Mothers

  • Will adopting and commission mothers be entitled to nursing breaks (or other equivalent breaks), or are these only available to biological mothers?

Since Section 11 of the MB Act has not been amended by the Amendment Act, adopting and commissioning mothers will be not be entitled to nursing breaks. The only women covered by Section 11 of the MB Act are those who have ‘delivered a child’.

However, four visits to the creche would be available to adopting and commissioning mothers.

  • When should the maternity benefit be paid to adopting and commissioning mothers?

A plain reading of Section 5(4) clearly provides that the benefit shall be paid to the adopting and commissioning mothers from the date the child is handed over to the adopting mother or the commissioning mother.

Work from Home

  • Whether a woman employee is eligible to claim, as a matter of right, to work from home (pursuant to expiration of maternity leave)?

The Amendment Act provides this as an option, and the criteria provided involves that (i) the nature of work is such that a woman employee may work from home; (ii) the employer may allow so to a woman employee (who has availed the maternity benefit); and (iii) for such period and on such conditions as the employer and the woman may mutually agree.

Crèche Facility

  • Every establishment with 50 or more employees is required to set up a creche facility. Does this threshold of 50 employees includes both male and female employees?

The term “employee” has not been defined in the MB Act. The MB Act is applicable to an establishment that has ten or more persons. Since, the MB Act or Amendment Act has not revised this aspect, therefore, every place of business / establishment having 50 or more employees would be required to comply with this condition. Needless to say, there seems to be some ambiguity given the requirement /obligation under the Factories Act, 1948, and it is an aspect that needs further clarity from the Government.

  • Can employer outsource the crèche facility to a professional/ service provider, instead of taking up the responsibility themselves ?

There does not seem to be any restriction to third parties setting up and operating a creche.

  • Whether the creche facilities can also be provided to male employees?

The Amendment Act is silent in this regard. Since the MB Act is a welfare legislation and applicable to women employees, the primary responsibility of an employer is to provide creche facilities to children of ‘women’. However, an employer, at his discretion, could extend the creche facilities to male employees.

  • A woman is entitled to four visits in a day to the creche facility. Is this only applicable to nursing mothers? What about adopting and commissioning mothers? Additionally, what should be the minimum time allowed to working women for such visits?

No, the requirement is not only for nursing mothers but also extends to adopting and commissioning mothers in view of the use of the word “woman” and not “woman delivered of child” in the proviso to sub-section (1) of Section 11A.

The minimum time-period for such a visit is subject to rules that may be issued by the appropriate government at a later stage. It is important to note that these four visits are inclusive of an interval for rest. The position, as of today, with respect to rest periods, is governed by Factories Act, 1948 and state specific Shops and Establishments Act. For instance, the minimum rest break (after every five hours of work), as provided for under different Statutes, is as follows:

  1. Factories Act, 1948: half an hour;
  2. Delhi Shops and Establishments Act, 1954: half an hour;
  3. Bombay Shops and Establishments Act, 1948: one hour (half an hour in the case of employees in a commercial establishment engaged in any manufacturing process); etc.

The MB Act is a welfare legislation and our analysis is based on liberal interpretation of the provisions thereof and should not be construed as a legal opinion. It is possible that the Ministry of Labour and Employment may issue further clarifications on aspects covered in this note which will help resolve these issues and avoid any room for interpretation in the Amendment Act/MB Act.

* The author was assisted by Abhinav Rastogi, Senior Associate Designate and Suryansh Gupta, Intern.