Maternity Benefits: Changes to the Maternity Benefits Act, 1961, under India’s new Social Security Code, 2022

Maternity Benefits: Changes to the Maternity Benefits Act, 1961, under India’s new Social Security Code, 2022

Overview

The Ministry of Labour and Employment in India brought substantial changes in Labour Laws, and one of the Code-named Code on Social Security, 2020, was framed. This Social Security Code 2020 subsumed 9 Acts. The Social Security Code 2020 has already been passed by both the houses of the Parliament and received the President’s assent on September 28, 2020. However, the Social Security Code 2020 shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

The Social Security Code 2020 introduces some new concepts and retains some provisions from the old statutes. The Social Security Code 2020 aims to unify the definitions of various terms across the old statutes and modifies the definition of the relationship between an employer and an employee. The Social Security Code 2020 also defines terms like gig-worker, platform worker, building worker, and contract worker to keep up with changing business needs. In keeping with global trends, the Social Security Code 2020 includes liberal maternity benefit provisions to ensure that having a child does not become a reason for women to leave her occupation.

Set out below are some of the salient features that have been introduced or modified by the Social Security Code, 2020.

Changes Maternity Benefit Act, 1961 Social Security Code, 2020
Applicability According to Section 5(2) every female employee who has worked in an establishment for at least 80 days (including days for which she was laid off/public holidays) in the twelve months immediately preceding the date of her expected delivery is eligible for maternity benefits On the other hand, in addition to what is mentioned in the Maternity Benefit Act 1961, the Social Security Code 2020 covers the ambit of unorganized workers, which includes 95 percent of India’s female workforce. Chapter IX of the Social Security Code 2020 states that the Central Government shall formulate and notify laws and welfare plans about unorganized workers on matters such as life and disability insurance, health and motherhood benefits, protection for senior citizens, education, and other benefits as it seems fit to the government. Section 114 of the Social Security Code 2020 provides maternity benefits to platform and gig workers.
Inspector-cum-Facilitator According to Section 14 the appropriate government has the power to appoint an inspector to enforce the provisions of the Act. However, under the Social Security Code 2020, the duties of enforcing the provisions of the Code have been given to a new authority, the Inspector-cum-Facilitator.

The Inspector-cum-Facilitator, at any reasonable time, can enter an establishment where female employees work and can also examine and speak to any person he reasonably thinks is an employee and require the employer to furnish information regarding the names and addresses of women employed and payments made to them. The Inspector cum-Facilitator also has the power to inquire into complaints of non-compliance with the provisions and pass orders that they deem just and proper based on the circumstances of the complaint.

Verification of Identity (Aadhar application) The Maternity Benefit Act 1961 has no provision for verifying a person’s identity who is claiming maternity benefits in the unorganized sector. Under Section 142 of the Social Security Code 2020, any worker in the unorganized sector seeking maternity benefits has to verify the worker’s identity. Further, the identity of the person nominated to obtain maternity benefits in the event of her death must be verified through their Aadhar Card number.

On the one hand, if the Social Security Code 2020 is increasing the benefits and making it stricter for employers to follow the provisions, then, on the other hand, there is a need for inspecting the true identity of the person claiming maternity benefits. The authorities following this change will bring clarity and prevent undue advantage.

Penalties Under the Maternity Benefit Act 1961, if an employer infringes any provision of the Act, the employer can face three-month imprisonment, which can be extended to one year, and a penalty of INR 2000 to INR 5000. Under the Social Security Code 2020, according to Section 133, any employer who intentionally disregards the maternity benefits of a woman who is entitled to it under the Social Security Code 2020 is subject imprisonment of upto to six-months t and/or a fine of up to INR 50,000.

Additionally, Section 134 of the Social Security Code 2020 says that a subsequent offense will result in imprisonment for a minimum of two years, a maximum of three years, and a fine of INR 3,00,000.

Conclusion

Throughout history, women have been subject to exploitation and unequal treatment and are still struggling to maintain their status in this patriarchal society. Hence, there is a need to provide reasonable leverage to the disadvantaged group. There is a question that a lack of suitable childcare is an essential factor in women’s decision not to return to work after having a child. The new changes should be beneficial, but employers must be given detailed instructions as soon as feasible. Social Security Code 2020 makes a massive difference in proving this point. The lack of awareness of women’s rights and the limited remedies available is one of the causes of their declining employment rates. In true commitment to the principles enshrined in the Constitution of India, the legislature has enlarged the breadth and applicability of the Maternity Benefit Act 1961 through many revisions.

 

Indian Immigration Alert | Foreign Nationals Seeking Indian Employment Visas May Continue to be Paid Outside India

Foreign Nationals Seeking Indian Employment Visas May Continue to be Paid Outside India

This is an update to the alert we published on August 28, 2022, regarding salary payments for foreign nationals employed in India.

We have procured clarifications from the Indian Consular posts in the U.S. and the U.K, regarding changes to the source of salary for foreign nationals seeking new employment visas.  There were certain changes to the requirements published online by the VFS in these two countries, that implied that the salary must be paid in India.  It also appeared that the salary must be paid from an Indian source.

We have now confirmed that the salary may be paid outside India and from a non-Indian source.  However, it is imperative that the salary is equal to or higher than the minimum threshold of INR 16,25,000 (approx. USD 25,000) annually and that all taxes due on that salary are paid to the Indian Income Tax department.  These requirements should be documented in the visa package with appropriate paperwork.  Also, it is prudent to ensure that the salary is commensurate to the foreign national’s position since Indian employment visas may only be granted to highly skilled or qualified workers.

Recent employment visa applications filed at different locations in India have been approved even when the foreign national receives his/her salary outside India.  Hence, the FRROs/FROs also continue to accept that foreign nationals may be paid abroad as long as the foreign national and employer are compliant with the tax requirements in India.  Please note that some FRROs/FROs are very stringent about the level of proof they require to establish tax compliance.

Indian Immigration Alert | Foreign Nationals Seeking Indian Employment Visas Must be Paid in India | Changes Announced at Certain Posts

Foreign Nationals Seeking Indian Employment Visas Must be Paid in India | Changes Announced at Certain Posts

Foreign nationals seeking Indian employment visas must now be paid their salaries in India.  Changes to this effect were introduced in the document requirements by Indian Consular posts or their third-party document support entities (VFS and BLS) in the United States, Germany and Hong Kong (SAR).  Applicants in these jurisdictions are required to submit proof that they will receive their salary in India.  It is not clear that the sponsoring entity must pay the salary, or it would suffice if the salary was received in India.  We have also learned anecdotally that the FRRO in Chennai is asking for such proof for employment visa extensions.

Previously, foreign nationals could be paid either by the home or the sponsoring entity and proof that the foreign national would receive or has received (for extensions) an adequate salary that would be subject to Indian income tax was sufficient irrespective of where they received the salary or which entity paid the salary.  We now expect that the affected consular posts will not only review the minimum salary threshold (of INR 1,625,000 per year) but will also confirm that the salary will be paid by the sponsoring entity in India.

On seeking confirmation from certain Consular posts in the U.S. and the VFS we received no response or responses that neither confirmed nor clarified the position.  The Ministry of Home Affairs in New Delhi, that formulates visa policies, has not made any announcement to this effect as yet.

It appears that these changes were made in the second week of August, but there is no definitive date.  Also, it is important to that that in the meantime, employment visa applications filed during the past two weeks, at Indian consular posts in the U.S., have been approved even though the applicants will remain on the home country payroll.  We are monitoring the situation and will provide further updates as they become available.

 

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