Demystifying the Maternity Benefits Bill, 2016

Currently, women employed in certain sectors, like factories, mines, shops and establishments with 10 or more employees, and other establishments notified by the state government are eligible for paid maternity leave up to 12 weeks under the Maternity Benefits Act, 1961. Various other labour laws provide for maternity benefits. The Employees’ State Insurance Act, 1948 provides for payment of wages to an insured woman, during her 12-week maternity leave. l Women employed in newspapers or working as journalists are entitled to similar maternity leave under the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955. l Further, women employed in the central government are provided about 24 weeks of paid maternity leave and additional child care leave up to a period of two years.

l The Unorganized Sector Workers Act, 2008 defines unorganized sector workers as those who are home based, self-employed or wage workers in an enterprise with less than 10 employees. l The 2008 Act mandates the central government to formulate health and maternity benefit schemes for women workers in the unorganised sector. The Janani Suraksha Yojana, which promotes child birth in an institution by providing financial assistance to women below poverty line, is being implemented under the 2008 Act. l The Indira Gandhi Matritva Sahyog Yojana (IGMSY) was launched to compensate women for loss of wages and to ensure that a mother can afford rest after a delivery and take care of health requirements of the new born child. l The IGMSY is a cash transfer scheme that provides Rs 6,000 to pregnant and lactating women above the age of 19 years with less than two children. In 2015, the Law Commission of India recommended increasing the period of maternity leave under the 1961 Act to 24 weeks, and bringing the unorganised work force within its ambit.

l Over the years, including in 2016, the Indian Labour Conference also recommended that the period of maternity leave be increased from 12 to 24 weeks. l The Maternity Benefits (Amendment) Bill, 2016 was introduced and passed in Rajya Sabha on August 11, 2016. It is currently pending in Lok Sabha. Highlights of the Bill l The Act provides maternity leave up to 12 weeks for all women. The Bill extends this period to 26 weeks. However, a woman with two or more children will be entitled to 12 weeks of maternity leave.

l The Bill introduces maternity leave up to 12 weeks for a woman who adopts a child below the age of three months, and for commissioning mothers. The period of maternity leave will be calculated from the date the child is handed over to the adoptive or commissioning mother. l The Bill requires every establishment with 50 or more employees to provide for crèche facilities within a prescribed distance. The woman will be allowed four visits to the crèche in a day.

l An employer may permit a woman to work from home, if the nature of work assigned permits her to do so. This may be mutually agreed upon by the employer and the woman. l The Bill requires an establishment to inform a woman of all benefits that would be available under the Bill, at the time of her appointment. Such information must be given in writing and electronically. Duration of Maternity Leave l Duration of maternity leave increased to 26 weeks. l Changed to eight weeks. l For a woman who has two or more children, the maternity leave will be 12 weeks, which can only be availed six weeks before the date of the expected delivery.

Maternity leave for adoptive and commissioning mothers l Provides 12 weeks of maternity leave to: (i) woman who legally adopts a child below three months of age; and (ii) commissioning mother. A commissioning mother is defined as a biological mother who uses her egg to have a surrogate child. l The 12-week period of maternity leave will be calculated from the date the child is handed over to the adoptive or commissioning mother. Creche facilities l Requires every establishment with 50 or more employees to provide crèche facilities within a prescribed distance. The woman will be allowed four visits to the crèche in a day.

This will include her interval for rest. Option to work from home l An employer may permit a woman to work from home, if the nature of work assigned permits her to do so. l This option can be availed of, after the period of maternity leave, for a duration that is mutually decided by the employer and the woman. Employer to inform the woman of maternity benefits l Every establishment has to inform a woman at the time of her appointment of the maternity benefits available to her. This communication must be in writing and electronically. Key Issues and Analysis l Several expert bodies like the WHO have recommended that 24 weeks of maternity leave is required to protect maternal and child health.

However, since the costs of this leave are to be borne by the employer, it may have an adverse impact on job opportunities for women. l Various countries have implemented different funding models in relation to maternity benefits. In some countries the employer bears the cost, while in some others it is paid by the government. l While women will be provided with 26 weeks of maternity leave for two children, the period of leave for a third child will be 12 weeks. This could affect the growth and development of the third born child. l The Act and Bill cover women workers employed in establishments with 10 or more employees, and other notified establishments. However, a majority of the women workforce, who are in the unorganized sectors, may not be covered. l There are several labour laws that provide maternity benefits to women in different sectors.

These laws differ in their coverage, benefits and financing of such benefits. Advantages and disadvantages of raising maternity leave Financing of maternity benefits Under the 1961 Act, the employer is liable to pay women workers maternity benefits up to a period of 12 weeks. The Bill increases this period to 26 weeks. This implies that employers will have to pay their women workers full wages for this period. The question is whether employers should bear the cost of providing maternity benefits. It could be argued that since maternal and child health is a public good, it would be appropriate for the government to finance such social security measures. The International Labour Organisation (ILO) Maternity Protection Conventions have stated that employers should not be exclusively liable for the cost of providing maternity benefits to their women employees.

It has recommended that the benefits should be provided through compulsory social insurance or public funds. Various countries have implemented different funding models in relation to maternity benefits. A 2014 ILO study on maternity leave provisions in 185 countries observed: l In 25% of the countries, maternity benefits are paid solely by the employer (e.g. Kenya, Puerto Rico, Nigeria, Pakistan). l In 16 % of the countries, maternity benefits are financed by combination of funds from the employer and the government (e.g. United Kingdom, Germany).

l In 58% of the countries, cash benefits are provided to pregnant women through national social security benefits (e.g. Norway, Australia). l In the remaining 1% of the countries, there was no provision for maternity benefits (namely, US and Papua New Guinea) Woman with two or more children entitled to only 12 weeks of leave The Bill extends the period of maternity leave from 12 to 26 weeks. However, this increase in maternity leave does not apply to women with two or more surviving children. Such women will be entitled to 12 weeks of leave. The government has stated that the Bill seeks to extend the period of maternity leave to 26 weeks to ensure maternal care to the child during early childhood.

It has also noted that such early care is essential for the growth and development of the child.13 This objective could be defeated if sufficient maternity leave is not given in the case of a third born child. Lack of uniformity across labour laws related to maternity benefits Currently, there are various labour laws that provide maternity benefits to women in different sectors. These laws differ in their coverage, benefits and financing of the benefits. The Second National Commission on Labour (2002) had recommended rationalization of various labour laws with regard to providing social security, including maternity benefits.