Maternity Benefits Under Social Security Code, 2020 (2026 Update): Employer Obligations, Creche Requirement & Penalties for Non-Compliance

Introduction: The Transition to the Social Security Code

The regulatory framework governing maternity benefits in India has undergone a definitive transition. The historic Maternity Benefit Act, 1961 (and its landmark 2017 Amendment) has now been formally subsumed into the Code on Social Security, 2020, which was brought into legal force on November 21, 2025.

While the fundamental entitlements of working mothers remain intact and protected, the regulatory architecture has shifted, introducing unified compliance standards and modernized grievance mechanisms for corporate employers. Furthermore, early 2026 has witnessed unprecedented judicial intervention by the Supreme Court, expanding the scope of benefits for adoptive mothers.

This publication serves as a comprehensive compliance guide for Human Resources (HR) professionals, legal counsels, and corporate employers on managing maternity benefits-related obligations under the Social Security Code, 2020, including creche mandates and penal liabilities under the new statutory framework.

Core Employer Obligations and Leave Entitlements under 

The Code imposes absolute liability on employers (in establishments with 10 or more employees) to provide paid maternity leave and protect the job security of female employees. To be eligible, a woman must have worked in the establishment for a minimum of 80 days in the 12 months immediately preceding the expected date of delivery.

Duration of Leave:

• First and Second Child: 26 weeks of fully paid leave (up to 8 weeks can be availed pre-delivery, and the remaining 18 weeks post-delivery).
• Third Child Onwards: 12 weeks of paid leave (up to 6 weeks pre-delivery).
• Miscarriage or Medical Termination: 6 weeks of leave with wages immediately following the day of the miscarriage.

Financial and Workplace Obligations:

• Full Wages: The employer must pay the maternity benefit at the rate of the average daily wage for the period of the employee’s actual absence. Payments must be processed without delay.
• Medical Bonus: If the employer does not provide free pre-natal and post-natal care, the employee is legally entitled to a medical bonus of ₹3,500.
• Protection Against Dismissal: It is strictly illegal to terminate, dismiss, or discharge a female employee during her maternity leave, or to serve a notice of termination that expires during the leave.
• Nursing Breaks: Upon returning to work, the mother is entitled to two nursing breaks during her daily work hours until the child reaches 15 months of age.
• Work-From-Home (WFH): If the nature of the work permits, employers are statutorily encouraged to provide WFH options after the maternity leave ends, on mutually agreed terms.

The 2026 Supreme Court Ruling: Adoptive Mothers

A critical legal update occurred on March 17, 2026, when the Supreme Court of India delivered a landmark judgment in Hamsaanandini Nanduri v. Union of India.

Under the original 2017 Amendment and Section 60(4) of the Social Security Code, an adoptive mother was entitled to 12 weeks of maternity leave only if the adopted child was below the age of three months.

The Supreme Court struck down this three-month age cap as unconstitutional, ruling that it violated the right to equality (Article 14) and personal autonomy (Article 21). The Court held that maternity leave is not solely for physical recovery but is essential for maternal bonding.

• The 2026 Mandate: Employers must now provide 12 weeks of paid maternity leave to all adoptive mothers, irrespective of the age of the child at the time of adoption. The leave commences from the date the child is officially handed over. Commissioning (surrogate) mothers also retain their 12-week entitlement.

The Mandatory Creche Requirement

The obligation to provide childcare facilities is not a best practice; it is a strict statutory mandate.

• The Threshold: Every establishment employing 50 or more employees (inclusive of male, female, and contract workers) must provide and maintain a creche facility.
• Access: The creche must be located within the workplace premises or within a prescribed, easily accessible distance.
• Usage Rights: A female employee is entitled to visit the creche four times a day, which is inclusive of her regular rest intervals.
• Implementation: HR departments cannot treat this as a mere policy statement. It requires operational planning, vendor due diligence (if outsourced), strict safety protocols, and clear communication. The employer retains ultimate legal liability for the safety and compliance of the creche, even if managed by a third-party vendor.

Penalties For Non-Compliance

Maternity benefit compliance is heavily monitored by labor inspectors. Common compliance failures include delayed salary processing during leave, denying leave, forcing resignations due to pregnancy, or failing to establish a creche.

Maternity benefits under the Social Security Code 2020, non-compliance invites severe punitive measures:

1. Imprisonment and Fines: Obstructing a labor inspector, failing to pay the maternity benefit, or unlawfully discharging a pregnant woman can result in imprisonment ranging from 3 months up to 1 year, alongside monetary fines.
2. Recovery Proceedings: The competent authority can issue orders to forcibly recover unpaid maternity benefits and medical bonuses from the employer as arrears of land revenue.
3. Reputational and Institutional Damage: Non-compliance exposes the company to severe reputational risks, public labor disputes, and adverse audit remarks during corporate due diligence.