For years, the crèche obligation under Indian labour laws was straightforward: if you had 50 or more employees, the Maternity Benefit Act required you to provide a crèche for children below six years, with four daily visits for nursing mothers.
That simplicity ended with the Labour Codes.
Today, the crèche mandate appears in two separate codes – the Code on Social Security, 2020 (CoSS) and the Occupational Safety, Health and Working Conditions Code, 2020 (OSHWC) and they do not speak with identical voices. The thresholds differ. The counting base differs. The visitation rights differ. And the availability of a cash allowance in lieu of a crèche exists in one framework but not explicitly in the other.
For employers, this is not an academic exercise. It is a direct compliance risk. Below, we break down what the law requires, where the two codes diverge, and what you must check before your next inspection.
The Old Benchmark – Maternity Benefit Act, 1961
Before understanding the new, remember the old. Section 11A of the Maternity Benefit Act required every establishment with 50 or more employees to provide a crèche facility. The key features:
- For children below six years.
- Could be separate or a common facility shared with other employers.
- Women employees were entitled to four visits per day to the crèche, including rest intervals.
While the Maternity Benefit Act still coexists, the Labour Codes have expanded, modified, and in some ways duplicated the obligation. Employers cannot simply rely on the old rule.
The Code on Social Security, 2020 – The Primary Crèche Framework
Section 67 of the CoSS is the core provision. It applies to:
- Factories, mines, plantations, and
- Shops or establishments employing 50 or more employees (or such lower number as may be prescribed).
Key obligations:
- A crèche facility must be provided for children below six years.
- The facility can be common/shared with other establishments.
- Women employees must be allowed four visits per day, including rest intervals.
Central Rules add operational specifics:
- The crèche must be located within 1 kilometre of the establishment, unless the establishment is in a notified industrial park/area where a common accessible facility exists (relaxation permitted).
- If a crèche is not provided, the employer may agree with the negotiating union, works council, or majority of employees to pay a crèche allowance.
- The minimum allowance is ₹500 per month per child, normally limited to two children (exception: second childbirth resulting in multiple births).
- The rules recognize access rights for women, widowers, or single parent employees.
The OSHWC Code, 2020 – A Parallel but Different Obligation
The OSHWC Code approaches crèche as a welfare and safety measure, but with notable differences:
Section 24(3) empowers the government to make rules requiring crèche facilities at a suitable location and distance. The threshold wording is “more than 50 workers are ordinarily employed” not “employees,” but “workers.”
Key distinctions:
- Threshold: CoSS uses “50 or more employees.” OSHWC uses “more than 50 workers.” That “more than” creates a numerical difference: at exactly 50 workers, OSHWC may not trigger.
- Counting base: “Employees” (CoSS) typically includes all categories; “workers” (OSHWC) may be narrower, often excluding managerial or administrative staff. This is a major grey area.
- Visitation clause: OSHWC does not explicitly include the four visits per day provision in Section 24(3). That does not mean the right disappears; it may be covered by other provisions or state rules but the absence is notable.
- Allowance in lieu: The OSHWC Code text does not provide for a crèche allowance substitution mechanism. That mechanism exists only under the CoSS Rules.
Additional OSHWC provisions:
- For plantations, Section 92 requires a crèche where 50 or more workers (including contract workers) are employed.
- For contract labour working at the principal employer’s premises, the Central Rules place responsibility for amenities including crèche squarely on the principal employer.
Where the Two Codes Diverge – A Compliance Trap Summary
| Aspect | Code on Social Security (CoSS) | OSHWC Code |
| Threshold wording | “50 or more employees” | “more than 50 workers” |
| Counting base | Employees (broader) | Workers (may be narrower) |
| Crèche location benchmark | 1 km (under Rules) | “suitable location and distance” (flexible) |
| Four daily visits for women | Expressly stated | Not stated in Section 24(3) |
| Crèche allowance substitute | Yes (₹500/child/month, max 2 children) | Not in Code text – may depend on state rules |
| Applicability to contract labour | Not specified | Principal employer responsible |
The practical danger: An employer might assume compliance under CoSS and ignore OSHWC, only to find that a different threshold, counting methodology, or location requirement applies. Worse, if a state rule notifies OSHWC crèche obligations at a lower threshold, non-compliance doubles.
What Employers Must Check Immediately
1. Determine which codes apply to your establishment.
- Factories, mines, plantations, shops, and other establishments may be covered by one or both.
- Do not assume one trumps the other. Both are enforceable.
2. Count carefully: employees vs. workers.
- “Employees” includes most hired individuals.
- “Workers” may exclude supervisors, managers, or administrative staff earning above a threshold. Check the definition under the OSHWC Code.
3. Verify the exact threshold for your location and industry.
- Central Rules set a baseline, but State Rules can prescribe lower numbers. Karnataka, Maharashtra, and Tamil Nadu have historically been more proactive.
4. If using a shared/common crèche facility:
- Document the arrangement in writing.
- Ensure it is within 1 km (for CoSS compliance) or at a “suitable distance” (for OSHWC).
- Confirm timings, access rights, and user eligibility for your employees.
5. Crèche allowance is not a free exit.
- Under CoSS, you can only pay the allowance if you fail to provide a crèche and you agree with the union or majority of employees. It is not a unilateral cost-saving option.
- Under OSHWC, the allowance mechanism is absent. If OSHWC applies, you may be forced to provide a physical crèche.
6. Ministry FAQ dated 16 March 2026 – critical update:
The Ministry of Labour & Employment has clarified that the crèche facility is available to employees irrespective of gender. Single fathers, widowers, and adoptive parents can also access the facility. Update your internal policy accordingly.
7. Contract labour nightmare:
If you are a principal employer and contract labour works on your premises, the OSHWC Central Rules place the crèche responsibility on you and not on the contractor. Review all outsourcing agreements.
Penalty and Risk Perspective
Failure to provide a crèche or the mandated allowance can lead to:
- Prosecution under Section 111 of CoSS (fine and/or imprisonment).
- Penalties under OSHWC for violation of welfare provisions.
- Complaints under the Maternity Benefit Act (which remains in force where not inconsistent).
More importantly, during any labour inspection, the inspector will ask for:
- Crèche registration or agreement for shared facility.
- Distance proof (1 km compliance).
- Allowance payment records (if applicable).
- Visitor logs for four daily visits.
Waiting for a “final notification” is not an excuse. The Codes have been published; Central Rules for crèche are already out. State Rules are following. Start your audit today.
Disclaimer: This blog is for general informational purposes only and does not constitute legal advice or establish an attorney-client relationship. Labour laws, including the Code on Social Security, 2020, the Occupational Safety, Health and Working Conditions Code, 2020, the Maternity Benefit Act, 1961, and the respective Central/State Rules, are subject to amendments, notifications, and judicial interpretations. The crèche thresholds, allowance amounts (₹500 per child per month), distance requirements (1 km), and visitation rights mentioned herein are based on Central Rules and Ministry FAQs available as of mid-2026. Employers must verify the applicable State Rules and obtain professional legal advice specific to their establishment size, industry, and location before implementing any policy or facility.