Applicability: Which Private Companies Are Covered

The Maternity Benefit Act 1961, as amended in 2017, applies to every factory, mine and plantation, and to every shop or establishment in which 10 or more persons are or were employed on any day of the preceding 12 months. That covers almost every private company with an office, and the threshold is headcount, not the number of women employed: a 12-person software firm with one woman employee is covered. The provisions have been carried into Chapter VI of the Code on Social Security 2020, which came into force on 21 November 2025; the older Act continues to operate for matters not yet covered by the new rules, and the substantive entitlements are the same under both.

Coverage follows the establishment, not the employment type. A woman employed directly, on a fixed-term contract, or through a contractor is entitled to maternity benefit from whoever is her employer, provided she meets the eligibility test. For contract and agency staff, the contractor is the employer in the first instance, but the principal employer remains responsible for ensuring the benefit is paid, in the same way as for wages and PF. Facility-management and staffing companies should therefore treat maternity benefit as a costed line in their client contracts rather than an unpriced risk.

The one important carve-out is ESIC. Section 5A of the Act provides that a woman who is covered under the Employees' State Insurance Act is not entitled to maternity benefit under the Maternity Benefit Act, because ESIC pays it instead (with a narrow exception for women whose wages have crossed the ESIC ceiling but who remain in the contribution period). The interplay is explained in a later section; for now, the rule is that every woman employee is covered by one of the two schemes, never neither and never both.

• Applies to shops and establishments with 10 or more employees on any day in the preceding 12 months
• Threshold is total headcount, not the number of women employed
• Contract and fixed-term employees are covered; the principal employer carries residual liability
• ESIC-covered women receive maternity benefit from ESIC, not from the employer under the Act

Eligibility: The 80-Day Test

A woman is entitled to maternity benefit if she has actually worked in the establishment for not less than 80 days in the 12 months immediately preceding the date of her expected delivery. Days of lay-off and paid holidays count as days worked for this test. There is no minimum salary and no requirement of confirmation; a probationer or a fixed-term employee who has worked 80 days qualifies. The test is applied once, at the expected date of delivery, so a woman who joins seven months before her due date and works five days a week comfortably qualifies.

The 80-day test is where attendance records earn their keep. If an employee's eligibility is questioned, the employer must produce the record of days worked. A verified attendance system that shows days present, paid holidays and approved leave for the preceding 12 months settles the question in minutes; a paper register or a WhatsApp group does not. For staffing companies whose employees move between client sites, the record must be per employee across sites, not per site.

The Act also requires the employer to inform every woman, in writing and electronically, of the maternity benefits available to her at the time of her appointment. Put a plain-language summary in the offer letter or the onboarding pack and in the employee app, and keep the acknowledgement. This is a low-cost obligation that is frequently missed.

• 80 days actually worked in the 12 months before the expected delivery date
• Lay-off days and paid holidays count; there is no salary or confirmation condition
• Keep a per-employee attendance record across sites to prove the 80 days
• Inform every woman of her maternity entitlements in writing at appointment

Duration: 26 Weeks, the 12-Week Cases and Other Leave Under the Act

For a woman with fewer than two surviving children, the maximum period of maternity benefit is 26 weeks, of which not more than 8 weeks may be taken before the expected date of delivery. The remaining period follows the delivery. The employee chooses how to split the pre- and post-delivery portion within that 8-week limit; many take 2 to 4 weeks before and the balance after. If the child is born earlier or later than expected, the post-delivery portion is measured from the actual date of delivery.

For a woman who already has two or more surviving children, the entitlement is 12 weeks, of which not more than 6 weeks may precede the expected delivery. A woman who legally adopts a child below the age of three months, and a commissioning mother (whose egg is used to create an embryo implanted in another woman), are each entitled to 12 weeks from the date the child is handed over. The Act also provides shorter paid leave for miscarriage or medical termination of pregnancy, for tubectomy, and additional leave for illness arising out of pregnancy or delivery, each on production of proof; check sections 9, 9A and 10 for the periods, which a leave system should carry as separate leave types.

Maternity leave is in addition to, not in place of, the employee's earned, casual and sick leave. Her earned leave should continue to accrue during maternity leave under most company policies, and days of maternity leave count toward the Factories Act 240-day qualifying test (up to 12 weeks) for the following year's earned leave. Do not let the leave system treat maternity leave as an absence that stops accrual.

• 26 weeks for the first two children, with up to 8 weeks before the expected delivery
• 12 weeks (up to 6 before delivery) for a woman with two or more surviving children
• 12 weeks for adoption of a child under 3 months and for commissioning mothers, from the handover date
• Separate leave for miscarriage, MTP, tubectomy and pregnancy-related illness under sections 9, 9A and 10
• Earned leave continues to accrue; maternity leave is not a break in service

Wage Computation, Medical Bonus and Payment Timing

Maternity benefit is paid at the rate of the average daily wage for the period of actual absence. The average daily wage is the average of the wages payable to the woman for the days on which she worked during the three calendar months immediately preceding the date from which she absents herself, or the minimum wage, whichever is higher. Wages here follow the Act's definition, which is broad and includes cash allowances, dearness allowance and incentive pay; it excludes bonus and the employer's contributions to PF and similar funds. Because the base is the three preceding months, an employee whose incentive pay was high in that quarter receives a higher benefit than her fixed salary alone would suggest.

Worked example: an employee earning a fixed monthly wage of ₹36,000 (basic, DA and allowances) worked 24 days in each of the three months before her leave began. Wages for the three months are ₹1,08,000 over 72 days worked, giving an average daily wage of ₹1,500. Her 26-week (182-day) benefit is ₹1,500 × 182 = ₹2,73,000, paid as salary through the normal payroll cycle, with EPF contributions continuing on the wage paid. In practice most employers simply continue the regular monthly salary, which meets or exceeds the statutory computation when the wage is fixed.

Where the employer does not provide pre-natal confinement and post-natal care free of charge, the woman is also entitled to a statutory medical bonus of an amount notified by the central government; verify the current figure. The Act requires the benefit for the period before delivery to be paid in advance on proof of pregnancy, and the balance within 48 hours of proof of delivery. Most employers meet this by paying salary on the normal payroll date, which is acceptable as long as no payment is later than the Act requires.

• Average daily wage of the 3 months before absence, or the minimum wage, whichever is higher
• Wages include allowances and DA under the Act's definition; exclude bonus and employer PF
• Medical bonus of the notified amount where no free pre- and post-natal care is provided
• Pre-delivery portion payable in advance on proof of pregnancy; balance within 48 hours of proof of delivery

Protections and Facilities: No Dismissal, Work From Home, Crèche and Nursing Breaks

It is unlawful to dismiss or discharge a woman during her maternity absence, or to give notice of dismissal that expires during that absence, or to vary her conditions of service to her disadvantage. A woman dismissed during pregnancy remains entitled to maternity benefit and medical bonus unless the dismissal is for gross misconduct as prescribed, and she may appeal a deprivation of benefit to the prescribed authority. Employers should also not require a pregnant woman to do arduous work or work involving long hours of standing in the period before her leave, if she requests otherwise.

After the maternity benefit period, where the nature of the work permits, the employer may allow the woman to work from home on terms mutually agreed. This is an option, not an entitlement, but a written policy on how such requests are made and decided avoids inconsistent outcomes across managers. Many companies pair it with a phased return over four to eight weeks.

Every establishment with 50 or more employees must provide a crèche facility, either alone or in common with other establishments, within a prescribed distance, and must allow the woman four visits a day to the crèche including her rest interval. In addition, until the child reaches the age specified in the Act, a nursing mother is entitled to two breaks a day for nursing the child beyond her ordinary rest interval. Both obligations have attendance implications: crèche visits and nursing breaks are paid time and must not generate late marks, early-exit marks or break-time violations in the attendance system.

• No dismissal, discharge or adverse change in service conditions during maternity absence
• Work from home after leave by mutual agreement where the work permits
• Crèche facility for establishments with 50 or more employees, with four visits a day
• Two nursing breaks a day in addition to rest intervals; configure attendance rules so these do not create marks

The ESIC Interplay: Who Pays When the Employee Is ESI-Covered

Women employees earning gross wages up to the ESIC ceiling of ₹21,000 per month (₹25,000 for persons with disability) in an ESIC-implemented area are insured persons, and their maternity benefit is paid by ESIC rather than by the employer. ESIC pays the benefit at the full average daily wage for the same 26-week period (12 weeks in the corresponding cases), subject to the insured woman meeting the contribution condition in the ESI regulations for the relevant contribution periods. The employer's role is to certify her employment and wages, provide the forms and not pay salary for the period, because ESIC is paying it. The mechanics of ESI coverage and contribution periods are in our guide to ESI calculation on gross salary and the ESI glossary entry.

The split works like this. If the employee is covered by ESIC and meets the contribution condition, ESIC pays the full benefit and the employer pays nothing under the Maternity Benefit Act. If the employee is covered by ESIC but does not meet the contribution condition (for instance, a recent joiner), the employer pays under the Maternity Benefit Act, because section 5A's exclusion applies only where the ESI benefit is actually available. If the employee's wages crossed the ESIC ceiling during a contribution period, she remains an insured person until the period ends and can still claim from ESIC for that time; thereafter the employer pays. Many employers voluntarily top up the ESIC benefit to full salary; that is a benefit, not an obligation.

Payroll consequences follow. During ESIC-paid maternity leave, the employer pays no wages, so no ESI or EPF contributions arise for that period; attendance should show the days as maternity leave (paid by ESIC), not as loss of pay, so that continuity of service and earned leave accrual are preserved. Where the employer pays under the Act, the benefit is wages for EPF purposes and contributions continue. Keep the two cases as separate leave types in the system so the payroll treatment is automatic.

• ESIC-covered women (gross up to ₹21,000) receive maternity benefit from ESIC, subject to the contribution condition
• Employer pays under the Act only where ESIC benefit is not available
• Wages above the ceiling mid-period: ESIC cover continues to the end of the contribution period
• Record ESIC-paid leave as maternity leave, not LOP, to preserve service continuity and accrual

Documentation, and Configuring Maternity Leave in the Leave System

Keep a maternity file per employee containing: the written notice from the employee stating the date from which she will be absent (which may be given before or after delivery, and the Act does not penalise a late notice beyond the timing of payment), medical proof of pregnancy and expected date of delivery, proof of delivery (or of adoption or handover for commissioning mothers), the wage computation for the three preceding months, the record of days worked in the preceding 12 months, the ESIC coverage determination, payment records, and the nominee details if she has nominated someone to receive the benefit. Retain these in line with your statutory record-keeping periods and your DPDP data notice.

In the leave system, create maternity leave as a distinct paid leave type that does not draw on earned, casual or sick leave, does not apply a sandwich rule, does not stop earned-leave accrual, and can be applied for a span of up to 26 weeks with a pre-delivery portion capped at 8 weeks. Create parallel leave types for the 12-week cases and for the shorter statutory leaves under sections 9, 9A and 10, and a separate type for ESIC-paid maternity absence so payroll withholds salary for that case only. Configure the approval workflow so that HR, not the line manager, is the approver, and so that the roster warns supervisors if an employee on maternity leave is scheduled.

Attend Mitra supports configurable leave types with accrual settings, an approval workflow in the app, a holiday calendar, live balances in the employee app, roster warnings for employees on approved leave and LOP flowing into the attendance-linked payroll run. Use it to hold the maternity leave types described above alongside the rest of the leave policy for your private company, and to produce the days-worked record that proves eligibility. For the wider statutory leave landscape, see our guide to India leave compliance.

• Maternity file: notice, proof of pregnancy and delivery, wage computation, days-worked record, ESIC determination, payments
• Distinct paid leave type; no draw on EL, CL or SL; no sandwich rule; accrual continues
• Separate types for the 12-week cases, sections 9, 9A and 10 leave, and ESIC-paid absence
• HR as approver; roster warnings so a woman on maternity leave is never scheduled