New Maternity rules call for creche facilities in organizations with 50 and more employees

Establishments having 50 or more employees will now have to provide a creche facility, according to the National Creche Guidelines outlined by the Maternity Benefit (Amendment) Act, 2017 (“The Amendment Act”). This is an amendment to the Maternity Benefit Act, 1961 (the MB Act).

The new amendment is applicable to government offices, companies and other organization that come under the ambit of MB Act.

Though the Ministry of Labour and Employment through its November 2017 notification required the respective state governments to frame the rules, the Ministry of Women and Child Development came up with a list of minimum standards and norms to ensure a national standard for the program. Not all states have come up with the framework and those that have haven’t still notified them into an Act.

The key features of the national guidelines are:

1. Eligibility: Mothers whose children are in the age group of 6 months to 6 years
2. Location: Should be located within 50 metres from the place of work
3. Timings: Flexible timings but covering the parent’s work day (8 to 10 hours)
4. Space: Should provide a minimum of 8-12 sq.ft. of space per child; to rest, play and learn
5. Human Resource: For every 30 children, one trained creche in-charge with helpers and one guard
6. Monitoring Committee: A creche monitoring committee needs to be set up comprising parents, creche-in-charge and admin/HR representatives

While the state government frameworks come close to the national guideline, there are deviations in many requirements. There is no clarity whether the establishment should follow the national guideline or the state’s framework.

Ambiguities Galore

From a compliance perspective, it is nightmare for companies with multi-state locations as each state has its own guidelines. The national guideline is only provided as a reference and not the final framework.

The national guideline is also not clear on who will bear the cost of running the creche. We have an official reply in response to an RTI application that the cost is to be borne by the employer. In such a case, there is a question mark on what happens to the creche facility allowance that many companies pay presently. One other pointer for us is the requirement that the cost of creche should be borne by the employer as mandated by the Contract Labour (Regulation and Abolition) Act, 2910, and the Factories Act, 1948.

Another point of ambiguity is whether the employers’ responsibility of compliance be diluted if the establishment gets a third-party specializing in running a creche to setup and manage the creche as mandated.

Follow State Government Rules

While clarity is sought, since the framework is to be finally drawn by the respective state governments, it is recommended to follow the rules framed by the state government and seek clarifications where required. Yes, it does put a burden on the establishment, especially those with multi state locations.

You can contact our specialists in Labour Law across the states in India to get more clarity