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Chapter VI · Social Security Code

Maternity Benefit

This chapter gives a woman employee up to 26 weeks of paid maternity leave, paid by her employer at her average daily wage, plus a medical bonus, paid leave for miscarriage and related illness, nursing breaks and crèche access. It also protects her job: she cannot be dismissed, or have her service conditions worsened, because of maternity absence. For employers, it fixes who qualifies, how much is paid, when it is paid, and what must be displayed and disclosed.

14 sections ~11 min read Official text, PDF pp. 46–49
HR managersPayroll teamsFactory and shop ownersWomen employees

Key points

  1. 1A woman gets up to 26 weeks of maternity benefit at her average daily wage, of which no more than 8 weeks can fall before the expected delivery; it is 12 weeks if she already has two or more surviving children. §60
  2. 2To qualify, she must have actually worked at least 80 days for that employer in the 12 months before her expected delivery; days she was laid off and holidays with wages declared under law also count. §60
  3. 3A woman who legally adopts a child under three months old, or a commissioning mother, gets 12 weeks of benefit from the day the child is handed over to her. §60
  4. 4The employer pays the pre-delivery benefit in advance on proof of pregnancy and the rest within 48 hours of proof of delivery, plus a medical bonus of ₹3,500 (or the amount the Central Government notifies) if it does not provide free pre-natal confinement and post-natal care. §62§64
  5. 5An establishment with 50 or more employees (or the number set by Central Government rules) must have a crèche, its own or a shared one, and allow four visits a day; a returning mother also gets two nursing breaks a day until the child is 15 months old. §66§67
  6. 6An employer cannot dismiss or discharge a woman during or because of maternity absence, or change her service conditions to her disadvantage; she can complain to the Inspector-cum-Facilitator. §68§72

At a glance

26 weeksMaximum maternity benefitSection 6012 weeksBenefit with two or more surviving childrenSection 6080 days in 12 monthsMinimum days worked to qualifySection 60₹3,500Medical bonus (unless government notifies another amount)Section 6448 hours of proof of deliveryDeadline to pay post-delivery benefitSection 6250Employees that trigger the crèche rule (unless Central Government rules set another number)Section 67
Earlier law:Maternity Benefit Act, 1961
59

Employment of, or work by, women prohibited during certain period

In plain words

No employer may knowingly employ a woman, and no woman may work, in any establishment for six weeks after her delivery, miscarriage or medical termination of pregnancy. A pregnant woman who asks cannot be required to do arduous work, long hours of standing or work likely to harm her pregnancy or health during the month before the last six weeks ahead of her expected delivery, or during any part of those six weeks she does not take as leave under section 62.

(1)

No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy.

(2)

No woman shall work in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy.

(3)

Without prejudice to the provisions of section 62, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do, during the period specified in sub-section (4), any work which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the foetus or is likely to cause her miscarriage or otherwise to adversely affect her health.

(4)

The period referred to in sub-section (3) shall be—

(a)

the period of one month immediately preceding the period of six weeks, before the date of her expected delivery;

(b)

any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 62.

Explanation

Explanation.— For the purposes of this section, the expression "any work of arduous nature" shall mean any work which involve or require strenuous effort or is difficult and tiring in nature.

Source: The Code on Social Security, 2020, official gazette copy, page 46
60

Right to payment of maternity benefit

In plain words

A woman who has actually worked at least 80 days for that employer in the 12 months before expected delivery gets maternity benefit at her average daily wage (never below the minimum wage under the Code on Wages, 2019) for her actual absence, up to 26 weeks with no more than 8 before delivery (12 weeks with two or more surviving children), with 12 weeks for adopting and commissioning mothers; if her work can be done from home, the employer may allow that after the benefit period on terms both sides agree.

(1)

Subject to the other provisions of this Code, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, and any period immediately following that day.

Explanation

Explanation.—For the purposes of this sub-section, "the average daily wage" means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, subject to the minimum rate of wage fixed or revised under the Code on Wages, 2019.

(2)

No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery.

Explanation

Explanation.— For the purposes of calculating the period under this sub-section, the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages, during the period of twelve months immediately preceding the expected date of her delivery shall be taken into account.

(3)

The maximum period for which any woman shall be entitled to maternity benefit shall be twenty-six weeks of which not more than eight weeks shall precede the expected date of her delivery:

Proviso

Provided that the maximum period entitled to maternity benefit by a woman having two or more surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:

Proviso

Provided further that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death:

Proviso

Provided also that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child.

Explanation

Explanation.— For the purposes of this sub-section, "child" includes a stillborn child.

(4)

A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.

(5)

In case the work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.

Source: The Code on Social Security, 2020, official gazette copy, page 47
61

Continuance of payment of maternity benefit in certain cases

In plain words

A woman already entitled to maternity benefit under this Chapter keeps getting it even though the ESI chapter (Chapter IV) applies to her workplace, until she qualifies for maternity benefit under section 32 of the ESI scheme.

Every woman entitled to the payment of maternity benefit under this Chapter, shall, notwithstanding the application of Chapter IV to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit under section 32.

Source: The Code on Social Security, 2020, official gazette copy, page 47
62

Notice of claim for maternity benefit and payment thereof

In plain words

A woman may give her employer written notice, in the form set by Central Government rules, saying who should be paid, that she will not work in any establishment while receiving the benefit, and (if pregnant) the date her leave starts, not earlier than eight weeks before expected delivery. The employer must let her take leave, pay the pre-delivery amount in advance on proof of pregnancy and the rest within 48 hours of proof of delivery, and missing the notice does not cancel her right.

(1)

Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Chapter may give notice in writing in such form as may be prescribed by the Central Government, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Chapter may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit.

(2)

In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than eight weeks from the date of her expected delivery.

(3)

Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after her delivery.

(4)

On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.

(5)

The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed by the Central Government that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed by the Central Government that the woman has been delivered of a child.

(6)

The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Chapter if she is otherwise entitled to such benefit or amount and in any such case an Inspector-cum-Facilitator may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order.

Source: The Code on Social Security, 2020, official gazette copy, page 47
63

Payment of maternity benefit in case of death of a woman

In plain words

If a woman dies before receiving her maternity benefit or any other amount under this Chapter, or the employer is liable for benefit under the second proviso to section 60(3) (death during the benefit period), the employer pays it to the nominee named in her notice, or to her legal representative if there is no nominee.

If a woman entitled to maternity benefit or any other amount under this Chapter, dies before receiving such maternity benefit or amount, or where the employer is liable for maternity benefit under the second proviso to sub-section (3) of section 60, the employer shall pay such benefit or amount to the person nominated by the woman in the notice given under section 62 and in case there is no such nominee, to her legal representative.

Source: The Code on Social Security, 2020, official gazette copy, page 48
64

Payment of medical bonus

In plain words

A woman entitled to maternity benefit also gets a medical bonus of ₹3,500, or the amount notified by the Central Government, unless the employer provides pre-natal confinement and post-natal care free of charge.

Every woman entitled to maternity benefit under this Chapter shall also be entitled to receive from her employer a medical bonus of three thousand five hundred rupees or such amount as may be notified by the Central Government, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.

Source: The Code on Social Security, 2020, official gazette copy, page 48
65

Leave for miscarriage, etc

In plain words

On proof set by Central Government rules, a woman gets paid leave at the maternity benefit rate of six weeks after a miscarriage or medical termination of pregnancy, two weeks after a tubectomy, and up to one extra month for illness arising from pregnancy, delivery, premature birth, miscarriage or termination.

(1)

In case of miscarriage, or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed by the Central Government, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.

(2)

In case of tubectomy operation, a woman shall, on production of such proof as may be prescribed by the Central Government, be entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately following the day of her tubectomy operation.

(3)

A woman suffering from illness arising out of pregnancy, delivery, premature birth of child, miscarriage or medical termination of pregnancy shall, on production of such proof as may be prescribed by the Central Government, be entitled, in addition to the period of absence allowed to her under section 62, or, as the case may be, under sub-section (1), to leave with wages at the rate of maternity benefit for a maximum period of one month.

Source: The Code on Social Security, 2020, official gazette copy, page 48
66

Nursing breaks

In plain words

A woman who returns to work after delivery gets two nursing breaks a day, of a length set by Central Government rules, on top of her normal rest interval, until the child is 15 months old.

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 may be prescribed by the Central Government, for nursing the child until the child attains the age of fifteen months.

Source: The Code on Social Security, 2020, official gazette copy, page 48
67

Creche facility

In plain words

Every establishment with 50 employees (or the number set by Central Government rules) must have a crèche within the distance set by those rules, allow four visits a day (counting her rest intervals), and may use a shared or pooled crèche; every woman must be told in writing and electronically about all benefits under this Chapter when she is first appointed.

(1)

Every establishment to which this Chapter applies, in which fifty employees or such number of employees as may be prescribed by the Central Government, are employed shall have the facility of crèche within such distance as may be prescribed by the Central Government, either separately or along with common facilities:

Proviso

Provided that the employer shall allow four visits a day to the crèche by the woman, which shall also include the intervals of rest allowed to her:

Proviso

Provided further that an establishment may avail common crèche facility of the Central Government, State Government, municipality or private entity or provided by non-Governmental organisation or by any other organisation or group of establishments who may pool their resources for setting up of common crèche in the manner as they may agree for such purpose.

(2)

Every establishment to which this Chapter applies shall intimate in writing and electronically to every woman at the time of her initial appointment in such establishment regarding every benefit available under this Chapter.

Source: The Code on Social Security, 2020, official gazette copy, page 48
68

Dismissal for absence during pregnancy

In plain words

An employer cannot dismiss or discharge a woman during or because of maternity absence, time a notice to expire during it, or worsen her service conditions; dismissal during pregnancy does not take away her benefit or medical bonus unless it is for gross misconduct (as defined by Central Government rules) and she is told by written order, and she can appeal within 60 days.

(1)

When a woman absents herself from work in accordance with the provisions of this Chapter, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service:

Proviso

Provided that the discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus under this Chapter, shall not have the effect of depriving her of the maternity benefit or medical bonus:

Proviso

Provided further that where the dismissal is for any gross misconduct as may be prescribed by the Central Government, the employer may, by order in writing, communicated to the woman, deprive her of the maternity benefit or medical bonus, or both.

(2)

Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed under sub-section (1), may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to the competent authority, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus or both, or discharged or dismissed, shall be final.

Source: The Code on Social Security, 2020, official gazette copy, page 49
69

No deduction of wages in certain cases

In plain words

A woman's normal daily wage cannot be reduced just because she was given different work during pregnancy under section 59 or takes nursing breaks under section 66.

No deduction from the normal and usual daily wages of a woman entitled to maternity benefit under the provisions of this Chapter shall be made by reason only of—

(a)

the nature of work assigned to her by virtue of the provisions contained in section 59; or

(b)

breaks for nursing the child allowed to her under the provisions of section 66.

Source: The Code on Social Security, 2020, official gazette copy, page 49
70

Forfeiture of maternity benefit

In plain words

A woman who works for pay during the period her employer has allowed her to be absent on maternity benefit loses the benefit for that period.

A woman who works for remuneration during the period she has been permitted by an employer to absent herself for availing the maternity benefits provided under this Chapter shall not be entitled to receive maternity benefit for such period.

Source: The Code on Social Security, 2020, official gazette copy, page 49
71

Duties of employer

In plain words

The employer must display a summary of this Chapter and its rules, in the local language or languages, at a prominent place in every part of the establishment where women work.

An abstract of the provisions of this Chapter and the rules relating thereto in the language or languages of the locality shall be exhibited in a conspicuous place by the employer in every part of the establishment in which women are employed.

Source: The Code on Social Security, 2020, official gazette copy, page 49
72

Power of Inspector-cum-Facilitator to direct payments to be made

In plain words

A woman whose maternity benefit or other amount is wrongly withheld (or any person owed a payment under this Chapter), or who is dismissed during or because of maternity absence, can complain to the Inspector-cum-Facilitator, who can inquire and order payment or other relief; an appeal lies within 30 days to the authority prescribed by the appropriate Government, whose decision is final.

(1)

Any woman claiming that,—

(a)

maternity benefit or any other amount to which she is entitled under this Chapter and any person claiming that payment due under this Chapter has been improperly withheld;

(b)

her employer has discharged or dismissed her during or on account of her absence from work in accordance with the provisions of this Chapter,

may make a complaint to the Inspector-cum-Facilitator.

(2)

The Inspector-cum-Facilitator may, on receipt of a complaint referred to in sub-section (1), make an inquiry or cause an inquiry to be made and if satisfied that—

(a)

payment has been wrongfully withheld, may direct the payment to be made in accordance with his order in writing;

(b)

she has been discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Chapter,

may pass such orders as he deems just and proper according to the circumstances of the case.

(3)

Any person aggrieved by the order of the Inspector-cum-Facilitator under sub-section (2) may, within thirty days from the date on which such order is communicated to such person, appeal to the authority prescribed by the appropriate Government.

(4)

The decision of the authority referred to in sub-section (3), where an appeal has been preferred to it under that sub-section or of the Inspector-cum-Facilitator where no such appeal has been preferred, shall be final.

Source: The Code on Social Security, 2020, official gazette copy, page 49

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