Maternity benefit under the Labour Codes: a guide for employers

Maternity benefit gives women employees paid leave and protection around childbirth, adoption and surrogacy. Since 21 November 2025 it is governed by Chapter VI of the Code on Social Security, 2020, which replaced the Maternity Benefit Act, 1961. The entitlements HR knows, 26 weeks, the 80-day rule, the creche requirement and work from home, carried over.

Who it applies to

Every factory, mine, plantation and shop or establishment in which 10 or more employees are employed, or were employed on any day of the preceding twelve months. A woman covered by ESI receives maternity benefit from ESIC instead, as a cash benefit at her average daily wage, subject to ESI's contribution conditions.

The entitlements

Situation	Paid leave
Childbirth, first and second child	26 weeks, of which up to 8 weeks before the expected delivery
Childbirth, a woman with two or more surviving children	12 weeks, of which up to 6 weeks before delivery
Adoption of a child below three months	12 weeks from the date the child is handed over
Commissioning mother (surrogacy)	12 weeks from the date the child is handed over
Miscarriage or medical termination of pregnancy	6 weeks
Tubectomy	2 weeks

"Paid" means the average daily wage for the period of absence, so payroll keeps salary running. A woman who does not receive free pre-natal and post-natal care from the employer also gets a medical bonus of the amount notified (₹3,500 under the old Act; check the figure notified under the Code).

Eligibility

A woman must have worked for the employer for at least 80 days in the twelve months immediately before her expected date of delivery. Days of lay-off and paid holidays count towards the 80 days. Check this early when leave is planned.

Work from home, creche and information

• Work from home: after the leave, the employer may allow work from home where the nature of the work permits, on terms both agree.
• Creche: an establishment with 50 or more employees must provide a creche within the prescribed distance, alone or as a common facility, and allow the mother four visits a day, including the interval for rest.
• Information: every woman must be told in writing and electronically, at the time of her appointment, about the benefits available under the Code.

Protections

An employer cannot dismiss or discharge a woman during, or on account of, her maternity absence, or change her conditions of service to her disadvantage. Leave counts as service, which protects gratuity and leave accrual.

Employer checklist

Step	What to do
Coverage	Check whether the woman is covered by ESI; if so, the claim goes to ESIC
Eligibility	Confirm 80 days in the preceding 12 months
Plan	Agree the split before and after delivery within the entitlement
Payroll	Pay the average daily wage for the leave, or stop salary where ESIC pays
Return	Discuss work from home and creche use before the return date
Records	Keep the notice, certificates and payment record

Common mistakes

• Treating maternity leave as unpaid or partly paid.
• Paying salary and also letting the employee claim from ESIC for the same period.
• Missing the 12 weeks for adoption and surrogacy.
• Ignoring the creche duty at 50 employees.
• Citing the repealed 1961 Act in the leave policy.

FAQs

Is it 26 weeks for every child? For a woman with fewer than two surviving children. With two or more surviving children it is 12 weeks.

Does adoption qualify? Yes, 12 weeks for a child below three months, from the date of handover.

Is maternity pay taxable? Salary paid by the employer is taxed as salary. ESI maternity benefit paid by ESIC is a social security benefit, not salary.

Is paternity leave mandatory? Not under a central law for private employers; it is a policy choice.

Key takeaways

• Maternity benefit is now under the Code on Social Security, 2020.
• 26 weeks for the first two children, 12 weeks thereafter and for adoption and surrogacy.
• 80 days of work in the preceding 12 months; ESI-covered women claim from ESIC.
• Creche at 50 employees; no dismissal during or because of maternity.

NeevHR models maternity as a leave type with its own eligibility and duration rules, keeps salary running through the period, and preserves service for gratuity. See leave management.

This article provides general information for educational purposes. Statutory rules, thresholds, rates and filing requirements may change; verify with the relevant authority or a qualified professional. Last reviewed: 03 Nov 2026.