Maternity Benefit: Leave, Pay and Crèche

Maternity benefit by surviving children, plus the crèche trigger

The length of paid maternity leave turns mainly on how many surviving children a woman already has. The table sets out each category from the Code on Social Security, 2020. Separately, a crèche becomes compulsory once an establishment employs fifty workers, or the number the Central Government prescribes, and the employer must then allow four crèche visits a day.

Source: Code on Social Security, 2020, Section 60. Crèche trigger: an establishment with fifty employees, or the number the Central Government prescribes, must provide a crèche and allow four visits a day. No figures in this table are assumed; all come from the statutory text.

The rule in plain words

Maternity benefit under the Code on Social Security, 2020 is paid leave around childbirth. For the period a woman is actually absent, that is the stretch immediately before her delivery and the stretch immediately after it, her employer must pay her at her average daily wage.

To qualify she must have actually worked for that same employer for at least eighty days in the twelve months before her expected delivery date. The length of the paid leave then depends mainly on how many surviving children she already has, with separate rules for adoption and for commissioning mothers.

• No or one surviving child: up to twenty-six weeks, of which not more than eight weeks may fall before the expected delivery date.
• Two or more surviving children: up to twelve weeks, of which not more than six weeks may fall before the expected delivery date.
• Legal adoption of a child below three months, or a commissioning mother: twelve weeks from the date the child is handed over.

A worked example

Take a woman with no other surviving children. The money figures below are illustrative and are used only to show the arithmetic; the Code fixes the weeks, not the rupee amounts.

• Average daily wage: the Code averages her wages for the days she actually worked in the three calendar months before she went on leave. Suppose this works out to an illustrative Rs 600 per day. This figure can never fall below the minimum wage set under the Code on Wages, 2019.
• Duration: with no other surviving child she may take up to twenty-six weeks, starting not more than eight weeks before her expected delivery date. Twenty-six weeks is 182 days.
• Benefit: 182 days multiplied by the illustrative Rs 600 gives an illustrative Rs 109,200 of maternity benefit, paid by the employer. Both the daily rate and the total here are illustrative, not statutory amounts.
• If she already had two or more surviving children, the same method would apply to twelve weeks, which is 84 days, of which not more than six weeks, which is 42 days, could fall before the expected delivery date.

Exceptions and fine print

• For this Chapter the word child includes a stillborn child, so the entitlement is not lost simply because the child is stillborn.
• If the woman dies during the benefit period, maternity benefit is payable only for the days up to and including the day of her death.
• If she delivers the child and then dies during or just after delivery, leaving the child, the employer stays liable for the whole benefit period; but if the child also dies within that period, the benefit runs only up to and including the day the child dies.
• Where the work allows it, the employer and the woman may agree that she works from home after she has used her maternity benefit, on terms they settle between them.
• The same Chapter also carries provisions on medical bonus, leave for miscarriage, and nursing breaks. Their specific amounts and limits sit in those provisions and the rules, which are not reproduced here, so no figures are stated.

What an employer must do

• Pay the maternity benefit at the average daily wage for the full period of actual absence, never below the minimum wage fixed under the Code on Wages, 2019.
• Before granting leave, check the eighty-day qualification across the twelve months before the expected delivery date, counting days actually worked, lay-off days, and statutory paid holidays.
• Apply the correct duration: twenty-six weeks and eight weeks for a woman with no or one surviving child, twelve weeks and six weeks for two or more, and twelve weeks from handover for adoption or commissioning mothers.
• Provide a crèche once the establishment employs fifty workers, or the number the Central Government prescribes, within the distance the Central Government prescribes; this may be a standalone crèche or a common, pooled facility.
• Allow the woman four visits a day to the crèche, which may include her rest intervals.
• At the time of a woman's initial appointment, tell her in writing and electronically about every benefit available under this Chapter.

What a worker can do

• Track your own attendance so you can show at least eighty days of work for the employer in the twelve months before your expected delivery; remember lay-off days and paid statutory holidays count.
• Know your duration before you plan leave: twenty-six or twelve weeks depending on surviving children, and twelve weeks from handover if you adopt a child under three months or are a commissioning mother.
• Expect pay at your average daily wage, which cannot be pushed below the Code on Wages minimum wage.
• Where a crèche applies, use your right to four visits a day.
• Ask for the written and electronic statement of Chapter benefits that the employer should give at appointment, so you know what you are entitled to.
• If your role allows it, raise the option of working from home after your maternity leave, by mutual agreement.

How the average daily wage and the eighty-day rule are counted

The average daily wage is not your latest salary figure. The Code averages the wages payable to you for the days you actually worked during the three calendar months immediately before the date you start your maternity absence. That average is then protected by a floor: it cannot be less than the minimum rate of wage fixed or revised under the Code on Wages, 2019.

The eighty-day test looks back over the twelve months before your expected delivery date. It is met by days you actually worked in the establishment, and the Code also counts days you were laid off and days declared as paid holidays under any law in force during that window.

Frequently asked questions