Crèche facility under the new Labour Codes: Available to all employees or restricted to women?

Creche facilities were originally mandated under the Factories Act, 1948, for women employees working in factories. Recognising the broader need for childcare support, the legislature extended this requirement to all covered establishments through the Maternity Benefit (Amendment) Act, 2017, by inserting Section 11A into the Maternity Benefit Act, 1961. This amendment established a statutory obligation on employers to provide creche facilities.

With the enactment of the labour codes, provisions relating to crèche facilities have been incorporated into both the Code on Social Security, 2020 (“SS Code”) and the Occupational Safety, Health and Working Conditions Code, 2020 (“OSH Code”). While on a plain reading, these provisions are mere replication of the erstwhile provisions, they have given rise to a certain ambiguity regarding the intended beneficiaries of this requirement.  

There is lack of clarity on whether the statutory requirement of provision of crèche facilities is required to be provided only for women employees or if this obligation is intended to be gender-neutral and applicable to employees generally.

In this article, we shall examine the eligibility threshold for the application of the facility for an establishment qua intended beneficiaries to claim the benefit. Against this backdrop, we will examine the relevant statutory provisions and analyse the legal position governing the provision of crèche facilities.

Section 67 of the SS Code retains the obligation to provide crèche facilities and substantially reproduces the corresponding provision under the Maternity Benefit Act, 1961 (“Maternity Benefit Act”). The provision states that any establishment employing fifty or more employees is required to have the facility of a creche within such distance as may be prescribed by the Central government, either separately or along with common facilities.

Eligibility threshold under the new Code

The threshold for the provision of a crèche facility has been stated as 50 employees. The use of the term “employees,” rather than “women employees,” suggests a gender-neutral approach, one that turns purely on headcount rather than gender composition of the workforce.

However, the placement of this provision within the chapter dealing with maternity benefit points towards the benefit of the creche facility still being intended only for women.

Section 67 of the SS Code commences with the phrase “every establishment to which this chapter applies”. The provision appears in Chapter VI of the Social Security Code, which deals exclusively with maternity benefits and related protections for women employees.

“Maternity benefit” is defined by reference to payments made to women, and the obligation to inform employees of the availability of crèche facilities is, in turn, cast specifically as a duty owed to women employees. On a combined reading of the provision with the chapter it is embedded in, the crèche facility is required to be provided in maternity-oriented framework, notwithstanding the gender-neutral language of the threshold itself.

The SS Code framework has further evolved through the introduction of a mechanism permitting the substitution of a physical crèche facility with a monetary allowance. The Social Security (Central) Rules, 2026 (“SS Rules”) provide that an employer may pay a crèche allowance in lieu of establishing and maintaining a facility.

This substitution is not unilateral. It is contingent upon an agreement with the negotiating union or negotiating council, and in the absence of such bodies, with a majority of the employees. The rules extend eligibility for the allowance to widowers and single parents with children below six years of age.

The OSH Code adopts a markedly different approach. The crèche obligation under this Code is situated within a broader chapter dealing with welfare measures rather than maternity protection.

Section 24 of the OSH Code empowers the appropriate government to require establishments employing more than fifty workers to provide crèche facilities. The categories of establishments covered include factories, mines, construction establishments, and other specified sectors. The focus here is on ensuring workplace welfare rather than addressing maternity related concerns alone.

The Ministry of Labour and Employment, in its FAQs dated March 16, 2026, addressed the question directly:

"Is the provision of crèche facility dependent on any specific gender composition of the workforce? The crèche facility is available to employees, irrespective of gender."

Under this framework, the threshold of fifty workers triggers an obligation that is clearly gender neutral in both its design and application, and the emphasis remains on the provision of an actual, functional facility.

Further, the single annual integrated return required to be filed under the four new Codes, indicate that the provision of creche allowance under the SS Rules is an alternate to providing a crèche facility under both the Codes.

This raises a more fundamental issue regarding the scope of the statutory obligation to provide a creche facility and the permissibility of substituting such facility through a crèche allowance.

The requirement to provide a crèche facility finds place under both the SS Code and the OSH Code, and the threshold for both is gender neutral at 50 or more workers/employees.

However, it can be interpreted that the SS Code conceptualises the crèche requirement within the broader framework of maternity and social security benefits available to women employees. Significantly, the SS Code also contemplates the substitution of the crèche facility with a crèche allowance. On a plain reading, it is understood that such allowance is payable only to a woman employee, a widower, or a single male parent, and is not available to male employees generally.

This gives rise to an interpretative inconsistency between both the two codes. If the crèche allowance is intended to substitute the facility itself, and such allowance is payable only to women (or the restricted categories as mentioned above), it becomes necessary to examine whether the underlying entitlement to the crèche facility is likewise restricted to such category of beneficiaries only or whether it is available to all employees. If the latter interpretation were adopted, it would create an anomalous situation where the facility is universally available, but its statutory/ cash substitute is restricted only to certain classes of employees.

A harmonious construction of the two codes would suggest that both the OSH Code and the SS Code operate in complementary spheres. The crèche provision under the OSH Code may be viewed as prescribing a general welfare facility to fifty or more workers. The substantive and enforceable right to avail of such a facility, however, emerges from the maternity and social security framework under the SS Code. Consequently, the benefit of the crèche facility, together with the option of its substitution by way of a crèche allowance, may reasonably be construed as being intended primarily for women employees and such other categories expressly identified under the SS Code, namely widowers and single male parents.

Considering this interpretation, the obligation to maintain a crèche facility as per the OSH Code is triggered at the establishment level once the statutory threshold of fifty or more workers is met, thereby satisfying the requirements of the OSH Code. However, access to and enjoyment of the benefit would be governed by the entitlements contemplated under the SS Code. Such a construction may give effect to both enactments, avoid internal inconsistency, and preserve the legislative distinction between prescribing workplace welfare standards and conferring specific social security benefits. This interpretation may harmonise the two codes and avoid an absurd or inconsistent result.

Further, both the SS Code and the OSH Code are beneficial welfare legislations intended, inter alia, to promote and facilitate greater participation of women in the workforce, including in non-traditional roles and working hours. The legislature has expressly restricted the benefit of a crèche allowance to women employees, widowers, and single male parents. This choice indicates the legislative intent to link the underlying benefit of the allowance, to women only. Accordingly, it can be argued that a similar approach should extend to the provision and access to the crèche facility itself, unless a broader interpretation is expressly endorsed through judicial pronouncement or any further regulatory clarification.

About the authors: Asish Philip is an Executive Partner, Astha Sinha is an Associate Partner, Priyanshi Rachchh is a Senior Associate and Rishita Sethi is an Associate at Lakshmikumaran & Sridharan attorneys.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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