Maternity benefit

In short

• A woman who has actually worked for you for at least eighty days in the twelve months before her expected delivery is entitled to maternity benefit s. 60(2).
• Pay it at her average daily wage for the period of her actual absence, up to twenty-six weeks, of which not more than eight weeks may come before the expected delivery s. 60(1), (3).
• Pay a medical bonus of ₹3,500 (or the amount the Central Government notifies) if you do not provide free pre-natal confinement and post-natal care s. 64.
• Do not dismiss or discharge her during, or on account of, her maternity absence s. 68(1).

Does this apply to you?

• The maternity Chapter applies to every factory, mine and plantation, including those belonging to Government First Schedule.
• It also applies to every shop or establishment in which ten or more employees are employed, or were employed on any day of the preceding twelve months First Schedule.
• A woman covered by the Employees’ State Insurance Chapter keeps her entitlement under this Chapter until she qualifies for maternity benefit under that Chapter s. 61.

What the law requires

Who qualifies

• She must have actually worked in your establishment for at least eighty days in the twelve months immediately before her expected delivery s. 60(2).
• Days of lay-off and paid holidays declared under any law in those twelve months count towards the eighty days s. 60(2), Explanation.

How much and for how long

• The rate is her average daily wage: the average of her wages for the days she worked in the three calendar months before her absence, and never below the minimum wage under the Code on Wages s. 60(1), Explanation.
• The maximum is twenty-six weeks, with not more than eight weeks before the expected delivery s. 60(3).
• For a woman with two or more surviving children, the maximum is twelve weeks, with not more than six weeks before the expected delivery s. 60(3), first proviso.
• A woman who legally adopts a child below the age of three months, or a commissioning mother, is entitled to twelve weeks from the date the child is handed over s. 60(4).
• If the work allows it, you may let her work from home after the benefit period on terms you both agree s. 60(5).

Example Her wages for the three calendar months before she goes on leave were ₹36,000 for 72 days worked, so her average daily wage is ₹500. For 26 weeks (182 days) of absence the benefit is ₹91,000, plus a medical bonus of ₹3,500 if you provide no free pre-natal and post-natal care. Use the maternity calculator for your own figures.

Other paid leave

• Miscarriage or medical termination of pregnancy: six weeks of leave with wages at the maternity benefit rate s. 65(1).
• Tubectomy: two weeks of leave with wages at that rate s. 65(2).
• Illness arising out of pregnancy, delivery, premature birth, miscarriage or medical termination: up to a month more, at that rate s. 65(3).
• Each of these needs proof by a certificate in Form-X from a registered medical practitioner, an Accredited Social Health Activist or a qualified Auxiliary Nurse and Midwife rule 35(1).

Work you may not give her

• You must not knowingly employ a woman during the six weeks immediately after her delivery, miscarriage or medical termination of pregnancy s. 59(1).
• If she asks, do not give a pregnant woman arduous work, work involving long hours of standing, or work likely to harm the pregnancy, in the month before the six weeks preceding her expected delivery, or during any part of those six weeks she does not take as leave s. 59(3)–(4).
• Do not cut her normal daily wages because of that lighter work or because of nursing breaks s. 69.

After she returns

• Allow two nursing breaks a day, in addition to her rest interval, until the child is fifteen months old s. 66.
• Each break is 15 minutes, with up to 15 minutes more for the journey to and from the crèche rule 36(1).

Crèche

• An establishment with fifty or more employees must provide a crèche for children under the age of six years rule 37(1).
• It must be within a kilometre of the establishment, or in a common facility in a notified industrial park or area if the competent authority relaxes this rule 37(2)(i).
• Allow the woman four visits a day to the crèche, including her rest intervals s. 67(1), proviso.
• You may share a common crèche run by Government, a municipality, a private entity, an NGO or a group of establishments s. 67(1), second proviso.
• Where a negotiating union or council, or a majority of employees, agrees with you, you may pay a crèche allowance instead if you do not provide a crèche; the allowance is not less than ₹500 per month per child, for two children rule 37(2)(viii).

Dismissal

• Dismissing her while she is pregnant does not take away the maternity benefit or medical bonus she would otherwise have received s. 68(1), first proviso.
• If you dismiss her for gross misconduct as listed in the Rules, you may withhold the benefit or bonus by a written order s. 68(1), second proviso.
• Gross misconduct means wilful destruction of your property, assault at work, conviction for an offence involving moral turpitude, theft, fraud or dishonesty in connection with your business, or wilful disregard of safety rules or equipment rule 38(1).

Numbers at a glance

What	Figure	Where
Days worked to qualify	at least eighty days in twelve months	s. 60(2)
Maximum benefit	twenty-six weeks (eight weeks before delivery)	s. 60(3)
Two or more surviving children	twelve weeks (six weeks before delivery)	s. 60(3), first proviso
Adoption or commissioning mother	twelve weeks	s. 60(4)
Medical bonus	₹3,500 or as notified	s. 64
Miscarriage or termination leave	six weeks	s. 65(1)
Tubectomy leave	two weeks	s. 65(2)
Nursing breaks	15 minutes each, until fifteen months	rule 36(1), s. 66
Crèche threshold	fifty or more employees	rule 37(1)

Records and deadlines

• She may notify you in Form-XI, or on plain paper or electronically if you accept that; a claim is not invalid because the form was not used rule 35(2)(a).
• Her notice cannot give an absence date earlier than eight weeks before the expected delivery s. 62(2).
• Pay the benefit for the period before delivery in advance, on proof of pregnancy, and the rest within forty-eight hours of proof of delivery s. 62(5).
• Pay the medical bonus along with the maternity benefit rule 35(2)(d).
• If she dies, pay her nominee, or her legal representative if there is no nominee, within two months rule 35(2)(a), (e).
• Tell every woman, in writing and electronically when she is appointed, about every benefit under this Chapter s. 67(2).
• Display an abstract of the Chapter and its rules, in the local language, in every part of the establishment where women work s. 71.

Not covered here

• Maternity benefit paid by the Employees’ State Insurance Corporation s. 61.
• Penalties, and State rules.

In short

• If you have actually worked for your employer for at least eighty days in the twelve months before your expected delivery, you are entitled to paid maternity leave s. 60(2).
• You can be paid for up to twenty-six weeks, of which not more than eight weeks can be before your expected delivery s. 60(3).
• You also get a medical bonus of ₹3,500 (or a higher amount if notified) unless your employer gives you free care before and after the birth s. 64.
• Your employer cannot dismiss you because you are on maternity leave s. 68(1).

Does this apply to you?

• Yes, if you work in a factory, mine or plantation, including those owned by Government First Schedule.
• Yes, if you work in a shop or other establishment that has ten or more employees, or had that many on any day in the last twelve months First Schedule.
• If you are covered by ESI, you keep this entitlement until you qualify for maternity benefit under ESI s. 61.

What the law requires

How much you are paid

• You are paid your average daily wage for each day you are actually away s. 60(1).
• Your average daily wage is the average of what you were paid for the days you worked in the three calendar months before your leave, and it cannot be less than the minimum wage s. 60(1), Explanation.
• Days of lay-off and paid holidays in the last twelve months count towards your eighty days s. 60(2), Explanation.

How long

• Up to twenty-six weeks, with not more than eight weeks before your expected delivery s. 60(3).
• If you already have two or more surviving children, up to twelve weeks, with not more than six weeks before delivery s. 60(3), first proviso.
• If you legally adopt a child below the age of three months, or you are a commissioning mother, twelve weeks from the day the child is handed to you s. 60(4).
• After your leave, your employer may let you work from home if your work allows it and you both agree s. 60(5).

Other paid leave

• Six weeks after a miscarriage or medical termination of pregnancy s. 65(1).
• Two weeks after a tubectomy operation s. 65(2).
• Up to a month more if you fall ill because of pregnancy, delivery, premature birth, miscarriage or termination s. 65(3).

While you are pregnant

• If you ask, your employer must not give you hard work, work with long hours of standing, or work that could harm your pregnancy, in the month before the six weeks preceding your expected delivery, or in any part of those six weeks you are still working s. 59(3)–(4).
• Your normal daily wages cannot be cut because you were given lighter work or take nursing breaks s. 69.
• You must not work anywhere during the six weeks after your delivery, miscarriage or termination s. 59(2).
• If you work for pay elsewhere during your maternity leave, you lose the benefit for that period s. 70.

When you go back

• You get two nursing breaks a day, on top of your normal rest interval, until your child is fifteen months old s. 66.
• Each break is 15 minutes, plus up to 15 minutes to get to and from the crèche rule 36(1).
• If your workplace has fifty or more employees, it must have a crèche for children under six years, within a kilometre rule 37(1), (2)(i).
• You are allowed four visits a day to the crèche, including your rest intervals s. 67(1), proviso.

Numbers at a glance

What	Figure	Where
Days you must have worked	eighty days in the last twelve months	s. 60(2)
Paid leave	up to twenty-six weeks	s. 60(3)
With two or more children	up to twelve weeks	s. 60(3), first proviso
Medical bonus	₹3,500	s. 64
Nursing breaks	15 minutes each	rule 36(1)

Example You earned ₹36,000 for 72 days worked in the three months before your leave, so your average daily wage is ₹500. For 26 weeks (182 days) you would get ₹91,000, plus ₹3,500 medical bonus if your employer gives no free care. Try the maternity calculator.

What to do if it isn’t followed

• Give your employer written notice, in Form-XI or on plain paper; not giving notice does not take away your benefit rule 35(2)(a), s. 62(6).
• Your employer must pay the part before delivery in advance on proof of pregnancy, and the rest within forty-eight hours of proof of delivery s. 62(5).
• If you are not paid, or are dismissed because of your absence, complain to the Inspector-cum-Facilitator s. 72(1). The Inspector must decide within 45 days rule 39(1)(b).
• Either side can appeal the Inspector’s order within thirty days s. 72(3).
• If you are dismissed or your benefit is withheld for gross misconduct, you can appeal to the competent authority within sixty days of the order s. 68(2).

Not covered here

• Maternity benefit paid through ESI s. 61.
• Penalties, and State rules.