AS | Ankit Sarawagi|Founder, CFOmatrix·August 2026·9 min read | Payroll & Labour Law |
A team member tells you she is expecting, and suddenly you need to know exactly how many weeks of paid leave you owe, at what wage, and whether it comes out of your bank account or someone else’s.
The Maternity Benefit Act sets all of that out, and most founders only read it once the question is already live. This guide walks through when the Act applies, the 26-week entitlement, the 80-day eligibility test, the medical bonus and creche duties, and the one point that decides whether you or ESI writes the cheque.
- When it applies
- Establishments with 10 or more employees (shops, factories, offices).
- Paid leave
- 26 weeks for the first two children, 12 weeks from the third; 12 weeks for surrogacy and adoption.
- Eligibility
- Worked at least 80 days in the 12 months before the expected delivery date.
- Extra duties
- ₹3,500 medical bonus (if no free care), creche at 50+ employees.
- Who pays
- The employer at average daily wage, unless the woman is covered by ESI.
1 Does the Maternity Benefit Act apply to you?
The Maternity Benefit Act, 1961 (as amended in 2017) applies to every establishment with 10 or more employees: shops, offices, factories and other commercial set-ups. If you employ ten people on any day, you are covered, and the duty does not lapse if headcount later dips below ten.
The Act protects women employees whom you employ directly. There is no minimum-wage or seniority bar to being covered by the law itself; the only gate is the 80-day work test that decides who can actually claim the paid benefit.
2 How much leave, and who qualifies
This is the part employees ask about first, so get the numbers exact.
| Situation | Paid leave |
|---|---|
| First and second child | 26 weeks (up to 8 weeks may be taken before the expected delivery date) |
| Third child onward | 12 weeks (up to 6 weeks before delivery) |
| Commissioning mother (surrogacy) | 12 weeks from the date the child is handed over |
| Adopting mother (child under 3 months) | 12 weeks from the date of adoption |
The 80-day eligibility test
To claim the paid benefit, the woman must have worked for you for at least 80 days in the 12 months immediately before her expected delivery date. Days worked, not calendar days, count. Someone who joined recently may be inside the Act but not yet eligible for paid leave, which is a conversation worth having early and honestly.
The benefit is paid at her average daily wage for the leave period, calculated on the wages earned in the three months before she goes on leave.
Kaveri Labs has a lab analyst expecting her first child, with an expected delivery date in November. She joined in February, so by the delivery date she has worked well over 80 days in the prior 12 months. Her average daily wage works out to ₹2,000. For 26 weeks (182 days) Kaveri pays 182 × ₹2,000 = ₹3,64,000 across the leave, at her normal wage, and holds her role open.
3 Medical bonus, creche and nursing breaks
Beyond the leave itself, the Act adds a few concrete obligations. None is large in rupee terms, but each is a line an auditor or an aggrieved employee can point to.
- Medical bonus of ₹3,500: payable in addition to wages if you do not provide free pre-natal and post-natal medical care.
- Creche facility: mandatory once you have 50 or more employees. It can be your own or a shared facility within the prescribed distance.
- Creche visits: the mother is allowed up to four visits a day to the creche, including her rest interval.
- Nursing breaks: two breaks a day until the child is 15 months old.
- Work from home: after the leave ends, you may allow work from home on mutually agreed terms if the nature of the work permits it.
4 The ESI interaction: who actually pays
This is the point that trips up founders. The Maternity Benefit Act says the employer pays. But where a woman is covered under the Employees’ State Insurance (ESI) scheme, her maternity benefit is paid by ESIC through the ESI maternity benefit, not directly by you.
ESI covers employees earning up to the wage ceiling (₹21,000 a month) in establishments registered under the ESI Act. So the practical split is:
| Employee | Who pays maternity benefit |
|---|---|
| Covered under ESI (within the wage ceiling) | ESIC, from the ESI scheme, once contribution conditions are met |
| Above the ESI ceiling, or unit not under ESI | The employer, directly, under the Maternity Benefit Act |
Brewly employs two women expecting this year. One is a barista drawing ₹18,000 a month at an ESI-registered outlet, so her maternity benefit flows from ESIC and Brewly’s direct cost is essentially nil. The other is a marketing lead on ₹70,000 a month, above the ESI ceiling, so Brewly pays her full 26 weeks itself under the Act. Same law, two very different cash outcomes, and Brewly needs to budget for the second.
5 Putting it into practice
When a maternity request comes in, the sequence is straightforward if you have the pieces ready.
6 Your compliance checklist
- Confirm you are at 10 or more employees, so the Act applies.
- State the maternity entitlement in every woman’s offer letter, in writing and electronically.
- Map each woman to ESI-covered or above-ceiling, so you know who pays the benefit.
- Apply the correct leave: 26 weeks for the first two children, 12 weeks from the third, 12 weeks for surrogacy and adoption.
- Run the 80-day eligibility check before confirming paid benefit.
- Pay the ₹3,500 medical bonus where no free medical care is provided.
- Set up a creche once you reach 50 employees, with up to four visits a day allowed.
- Never dismiss or downgrade a woman during maternity leave.
Not sure which rules apply at your headcount?
Use our free Compliance Applicability Checker: enter your team size, state and set-up, and see exactly which labour, payroll and HR filings you owe now, and which switch on as you grow.
Check my compliances7 FAQs
How many weeks of maternity leave must an employer give in India?
Who is eligible for maternity benefit under the Act?
Does the employer pay maternity benefit if the woman is covered under ESI?
When is a creche facility mandatory?
What is the medical bonus under the Maternity Benefit Act?
Related guides & templates
Download: maternity & paternity leave policy template →
ESI registration and filing in India →
POSH compliance: Internal Committee & annual report →
Which compliances apply to your company? (free tool) →
AS | Founder, CFOmatrix | Finance Strategy & Compliance CFOmatrix helps Indian startups build finance, tax and compliance functions that stand up to investor due diligence, from process and controls to the filings and the numbers behind them. |
Disclaimer: This article is general information as of August 2026 and is not legal advice. The Maternity Benefit Act, the ESI scheme and state-level rules can change and vary by location. Confirm your specific obligations with a qualified professional before acting.