Medical Bonus, Miscarriage, Nursing Breaks and Creche

It follows the main entitlement. It goes to "every woman entitled to maternity benefit under this Chapter", so a woman who fails the eighty day test in section 60(2) gets neither.

Section 65: leave for miscarriage, tubectomy and illness

Three separate entitlements, each with wages at the rate of maternity benefit, and each on production of such proof as the Central Government prescribes.

Section 65(3) is additional. It says so expressly: the leave is "in addition to the period of absence allowed to her under section 62, or, as the case may be, under sub-section (1)". So a woman who takes six weeks after a miscarriage and then falls ill because of it may take up to a further month.

Note the relationship with section 59. The six weeks after a miscarriage appear twice, from two different angles. Section 59(1) and (2) prohibit her working during them. Section 65(1) gives her leave with wages for them. One is a health rule, the other is a payment, and a full answer names both.

Section 66: nursing breaks

Every woman delivered of a child 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 such duration as the Central Government prescribes, for nursing the child until the child attains the age of fifteen months.

Three things to hold. There are two breaks. They are in addition to the ordinary rest interval, not carved out of it. They run until the child is fifteen months old.

Read this with section 69(b), taken in the next chapter, which forbids any deduction from a woman's normal and usual daily wages by reason only of nursing breaks allowed under section 66. The break is paid.

Section 67: creche

Section 67(1), the obligation. Every establishment to which the Chapter applies in which fifty employees, or such number as the Central Government prescribes, are employed shall have the facility of a creche within such distance as the Central Government prescribes, either separately or along with common facilities.

First proviso, visits. The employer shall allow four visits a day to the creche by the woman, which shall also include the intervals of rest allowed to her.

Second proviso, shared creches. An establishment may avail a common creche facility of the Central Government, a State Government, a municipality, a private entity, a non-Governmental organisation, or any other organisation, or of a group of establishments who pool their resources to set up a common creche in the manner they agree.

Section 67(2), the duty to tell her. Every establishment to which the Chapter applies shall intimate in writing and electronically to every woman at the time of her initial appointment about every benefit available under this Chapter.

Section 67(2) is easy to overlook and it is a genuinely modern provision. A right nobody is told about is not worth much. Notice that the duty arises at the time of initial appointment, not when the woman becomes pregnant, and that it must be done both in writing and electronically. It sits alongside section 71, which requires an abstract of the Chapter to be displayed in the establishment.

A worked example

Anjali works at a packaging unit employing sixty people. She qualifies for maternity benefit.

The employer runs no clinic and pays for no treatment. What does she get beyond her leave? A medical bonus of 3,500 rupees, or such amount as notified, under section 64, because no pre-natal confinement and post-natal care is provided by the employer free of charge.

Had the employer provided that care free of charge? No bonus. Section 64 is conditional on the absence of free care.

She returns to work and is still feeding the child. She is entitled under section 66 to two breaks in the course of her daily work, in addition to her ordinary rest interval, until the child is fifteen months old. Under section 69(b) no deduction may be made from her wages by reason only of those breaks.

Is there a creche? There must be. The unit has sixty employees, which is above the fifty in section 67(1), so the establishment shall have a creche within the prescribed distance, either its own or shared. Anjali is entitled to four visits a day, and those visits include her rest intervals.

The employer says a creche is impossible for a unit this size. The second proviso to section 67(1) allows him to use a common creche run by a Government, a municipality, a private entity or a non-Governmental organisation, or to pool resources with other establishments.

Nobody told Anjali about any of this when she joined. That is a breach of section 67(2), which requires the establishment to intimate every benefit under the Chapter in writing and electronically at the time of her initial appointment.

Now change the facts. Anjali has a miscarriage in the eighteenth week.

Can she work the following week? No. Section 59(1) and (2) prohibit both her employment and her working for the six weeks immediately following.

Is she paid? Yes. Section 65(1) entitles her, on production of prescribed proof, to leave with wages at the rate of maternity benefit for those six weeks.

She then develops an illness arising out of the miscarriage. Section 65(3) gives her, in addition, leave with wages at the rate of maternity benefit for a maximum of one month.

Later she undergoes a tubectomy. Section 65(2) gives her leave with wages at the rate of maternity benefit for two weeks immediately following the operation, on production of prescribed proof.

What this does NOT mean

The medical bonus is not automatic. It is payable only where the employer does not provide pre-natal confinement and post-natal care free of charge.

The nursing breaks are not part of the rest interval. Section 66 says "in addition to the interval for rest allowed to her", and section 69(b) makes them unpaid deductions unlawful.

The creche visits are not four extra breaks. The first proviso to section 67(1) says the four visits shall also include the intervals of rest allowed to her.

Section 65(3) is not an alternative to the other leave. It is expressly in addition to the absence allowed under section 62 or under section 65(1).

The creche threshold is not on women employees. Section 67(1) speaks of establishments in which fifty employees are employed, not fifty women.

Limits and criticism

The medical bonus figure is very low and has not been designed to track the cost of care. Section 64 leaves it to notification, and until a higher figure is notified the statutory sum is 3,500 rupees.

Section 67(2) carries no stated consequence. The Chapter creates a duty to inform every woman at appointment but says nothing about what follows if the employer does not.

The creche threshold of fifty employees leaves the great majority of Indian workplaces outside it.

Nothing in section 66 or section 67 addresses a father, so the whole burden of child care in the Chapter's design falls on the mother.

Quick revision

• Section 64: medical bonus of 3,500 rupees, or as notified, payable only if the employer does not provide pre-natal confinement and post-natal care free of charge; it goes to every woman entitled to maternity benefit.
• Section 65: leave with wages at the rate of maternity benefit, on prescribed proof: six weeks after miscarriage or medical termination of pregnancy; two weeks after tubectomy; up to one month for illness arising out of pregnancy, delivery, premature birth, miscarriage or medical termination, and this last is in addition to the others.
• Section 66: two nursing breaks a day, of prescribed duration, in addition to the rest interval, until the child is fifteen months old; unpaid deduction for them is barred by section 69(b).
• Section 67(1): creche where fifty employees, or as prescribed, are employed, within a prescribed distance, separately or shared; four visits a day, including the rest intervals; a common or pooled creche is permitted.
• Section 67(2): every woman must be told of every benefit under the Chapter, in writing and electronically, at the time of her initial appointment.

Test yourself

1. When is a medical bonus payable, and how much is it? Where the employer does not provide pre-natal confinement and post-natal care free of charge, to every woman entitled to maternity benefit. The amount is three thousand five hundred rupees, or such amount as the Central Government may notify: section 64.

2. How much leave does a woman get after a miscarriage, and at what rate? Six weeks immediately following the day of the miscarriage, with wages at the rate of maternity benefit, on production of prescribed proof: section 65(1). Section 59(1) and (2) separately prohibit her employment and her working during that period.

3. A woman has taken six weeks after a medical termination of pregnancy and then falls ill because of it. Is any further leave available? Yes. Section 65(3) entitles her, in addition to the absence already allowed, to leave with wages at the rate of maternity benefit for a maximum period of one month.

4. How many nursing breaks is a woman entitled to, and for how long? Two breaks in the course of her daily work, of such duration as the Central Government prescribes, in addition to her rest interval, until the child attains the age of fifteen months: section 66.

5. At what size must an establishment provide a creche, and how many visits are allowed? Where fifty employees, or such number as prescribed, are employed: section 67(1). The employer shall allow four visits a day, which shall also include the intervals of rest allowed to her.

6. What must an employer tell a woman when she joins? Every benefit available under Chapter VI, in writing and electronically, at the time of her initial appointment: section 67(2).