Maternity Benefit for Employers: 26 Weeks, the 80-Day Rule, Creche and Payroll
A woman who has worked 80 days in the 12 months before delivery gets up to 26 weeks of paid maternity leave (12 weeks with two or more surviving children), plus a ₹3,500 medical bonus if free care is not provided. ESIC pays for covered employees. Establishments with 50 or more employees must provide a creche.
Maternity benefit is one of the few statutory benefits paid in full by the employer in most small companies. Getting it wrong is costly and unfair. Here is what the Code on Social Security requires.
Who qualifies
A woman employee qualifies if she has worked in the establishment for at least 80 days in the 12 months before her expected date of delivery. The rules apply to establishments employing 10 or more people.
How much leave
| Situation | Paid leave |
|---|---|
| First or second child | Up to 26 weeks, of which up to 8 weeks before delivery |
| Two or more surviving children | Up to 12 weeks, of which up to 6 weeks before delivery |
| Adopting a child below three months, or commissioning mother | 12 weeks from the date the child is handed over |
| Miscarriage or medical termination | 6 weeks |
| Illness arising from pregnancy or delivery | Up to one more month |
What you pay
- ✓Average daily wage for the leave period.
- ✓A medical bonus of ₹3,500 if you do not provide free pre-natal and post-natal care.
When ESI pays instead
For an employee covered by ESI, maternity benefit is paid by ESIC, not the employer, if she meets ESIC's contribution conditions. The employer's direct liability applies to women not covered by ESI, which is most employees above the ₹21,000 ceiling.
Creche
Establishments with 50 or more employees must provide a creche, or access to one, within the prescribed distance, and allow the mother visits during the day.
A worked example
An Ahmedabad software firm's employee, with a salary of ₹60,000 a month, takes 26 weeks of maternity leave for her first child. She is not covered by ESI.
- ✓Average daily wage: about ₹2,000 (₹60,000 ÷ 30).
- ✓26 weeks = 182 days, so maternity benefit ≈ ₹3,64,000.
- ✓Plus ₹3,500 medical bonus if the company does not provide free care.
Payroll pays it as salary for the leave months, with TDS as usual.
Payroll and HR checklist
- Confirm the 80-day eligibility, and whether ESIC pays.
- Agree the leave dates in writing.
- Pay monthly during leave, as normal salary.
- Do not dismiss or change service conditions to her disadvantage because of pregnancy.
- Discuss a gradual return or work from home, where the work allows and both agree.
- Arrange creche access if you have 50 or more employees.
Frequently asked questions
Can we deduct leave taken before maternity leave from the 26 weeks?
No. Maternity leave is a separate entitlement.
Does maternity leave count as service for gratuity?
Yes. Paid maternity leave counts as continuous service.
Is maternity benefit taxable?
Yes, when paid by the employer as salary.
Sources
- ✓Maternity benefits and creche obligations under the labour codes, King Stubb & Kasiva
- ✓Maternity benefit under the Code on Social Security, Taxmann
- ✓Maternity benefits in India in 2026, India Briefing
This is a summary, not legal advice. Confirm with a labour-law professional.
Written by
HR Manager, Airwix Technologies (Sleet)
Nihit Dobariya is the HR Manager at Airwix Technologies in Ahmedabad, where he runs HR and payroll for the team behind Sleet. He writes about payroll, PF and ESIC, professional tax, the labour codes and everyday HR practice for Indian employers, and checks each rule against the official notification before it is published.
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