Employer of RecordJuly 8, 2026by Mukul DixitMaternity Leave in India 2026: Guide for US Firms

• Maternity leave in India* is governed by Chapter VI of the Code on Social Security, 2020 (effective 21 November 2025), which consolidates the Maternity Benefit Act, 1961 and its 2017 amendment.

• Standard entitlement is 26 weeks of fully paid leave for the first two children and 12 weeks for the third child onward; adoptive and commissioning mothers receive 12 weeks from handover.

• Employees must typically have worked at least 80 days in the 12 months before the expected delivery date in an establishment with 10+ workers.

  Table of Contents

  Toggle

• Paid maternity leave in India* is funded by the employer at 100% of the employee’s average daily wage (three‑month look‑back), except where Employees’ State Insurance (ESI) pays for lower‑wage workers.

• A 17 March 2026 Supreme Court ruling removed the earlier age cap that limited maternity benefits for adoptive mothers; all adoptive mothers now get 12 weeks’ paid leave from handover, regardless of the child’s age.

• For US firms, failing to align contracts and processes with maternity leave rules* can trigger fines (up to ₹3,00,000 for repeat offences), personal liability for directors, and reputational risk.

Maternity leave in India is no longer just a domestic HR issue, it is a mandatory, high‑impact compliance requirement for any US company employing staff in India, whether directly or through an Employer of Record (EOR). Under the Code on Social Security, 2020 and a major Supreme Court ruling in 2026, eligible women now receive up to 26 weeks of fully paid, job‑protected leave, with expanded rights for adoptive and commissioning mothers.

At its core, maternity leave in India is a statutory period of paid, job‑protected leave granted to women employees for pregnancy, childbirth, adoption, or commissioning (surrogacy), along with time for recovery and early childcare. It is not an optional benefit: once an employee qualifies, employers must grant leave and pay wages at the prescribed rate.

Crucially for US employers, maternity leave policy in India attaches to where the employee works, not where the company is headquartered, so a US‑based SaaS company employing an engineer in Bengaluru must comply with Indian law even if payroll is run from the US.

Since 21 November 2025, maternity leave rules* are codified in Chapter VI of the Code on Social Security, 2020 (often called the “SS Code”), which consolidates and replaces the standalone Maternity Benefit Act, 1961. The SS Code retains key entitlements, 26 weeks / 12 weeks, 80‑day eligibility, while embedding them in a broader social‑security architecture that also covers provident fund, ESI, and other schemes.

The Code applies to factories, mines, plantations, shops and commercial establishments, IT/ITES firms, and any other establishment with 10 or more workers, including those owned by foreign companies.

Since 21 November 2025, maternity leave rules* are codified in Chapter VI of the Code on Social Security, 2020 (often called the “SS Code”), which consolidates and replaces the standalone Maternity Benefit Act, 1961. The SS Code retains key entitlements, 26 weeks / 12 weeks, 80‑day eligibility, while embedding them in a broader social‑security architecture that also covers provident fund, ESI, and other schemes.

The Code applies to factories, mines, plantations, shops and commercial establishments, IT/ITES firms, and any other establishment with 10 or more workers, including those owned by foreign companies.

On 17 March 2026, in Hamsaanandini Nanduri v. Union of India, the Supreme Court struck down a restrictive provision that had limited adoption‑related maternity benefits to children under three months of age. The Court held that:

• All adoptive mothers are entitled to 12 weeks of paid maternity leave from the date the child is handed over, regardless of the child’s age.

• Denying benefits based on age violated constitutional guarantees of equality and dignity and failed to account for how long adoptions practically take.

Any internal maternity leave policy in india that still references a “child under three months” requirement is now out of date and must be corrected.

Under current law, maternity leave duration in india can be summarised as follows:

These baselines are the non‑negotiable minimums. Employers may always grant more generous maternity leave days or broader parental benefits as a matter of policy.

To qualify for statutory paid maternity leave in India under India’s Maternity Benefit Act and the Code on Social Security, a woman must generally:

• Meet the eligibility criteria of having actually worked at least 80 days in the 12 months immediately preceding the expected date of delivery, in the same establishment.

• Be employed in an establishment with ten or more employees during the current or previous 12‑month period.

This means maternity leave eligibility depends on meeting these statutory requirements before an employee can avail maternity leave.

Eligibility is based on actual days worked, not employment type or contract label. Courts and government guidance confirm that female employees and working women across permanent, fixed‑term, temporary, and even daily‑wage roles qualify if they meet the 80‑day threshold.

Contract and agency workers: Covered if they meet the 80‑day requirement; contracts should clarify whether the principal employer or staffing agency carries statutory liability.

Gig and platform workers: The Code anticipates scheme‑based social‑security coverage for gig workers funded by aggregators; implementation is still rolling out, but maternity protection is expected to expand.

Very small employers (<10 workers) and self‑employed women: Not covered by Chapter VI, but may access programmes such as Pradhan Mantri Matru Vandana Yojana (PMMVY), which provides a cash benefit of around ₹6,000 for the first live birth.

For US firms hiring in India, the safest rule of thumb is: “if someone works under your direction in India and looks like an employee, assume maternity leave rules* apply unless clearly outside the Code’s scope.”

Yes! under maternity leave policy in india, eligible employees are entitled to fully paid leave, with “maternity benefit” equal to the average of their daily wages for the period of absence, reflecting core maternity leave benefits under the Code.

• The average daily wage is usually calculated using the employee’s gross salary (basic pay + regular allowances, excluding bonuses and overtime) over the three calendar months preceding the start of leave, divided by 26 working days.

• For a woman earning ₹60,000 per month in gross pay, this results in an average daily wage of roughly ₹2,307 and about ₹4.2 lakh in total maternity pay over 26 weeks, supporting financial security and financial stability during the leave period.

For employees covered under Employees’ State Insurance (ESI), typically those earning under about ₹21,000 per month—the ESI Corporation pays maternity benefits, but employers must still track the leave period, maintain records, and coordinate filings.

Beyond wage replacement, eligible women may also receive additional benefits:

• A medical bonus (amount prescribed by the central government) where the employer does not provide pre‑ and post‑natal care.

• PMMVY cash benefits of ₹6,000 for the first live birth, paid directly by the government, aimed especially at lower‑income and unorganised‑sector workers.

These schemes do not reduce the employer’s obligation to fund paid maternity leave in India under the Code for pregnant women.

Once pregnancy and intended leave are notified, employers must not dismiss, discharge, reduce wages, or otherwise disadvantage the employee because of maternity. This legal protection supports job security, but job insecurity still affects many women during maternity leave. Terminating employment during maternity leave, or refusing to reinstate the employee to the same or a comparable role afterwards, can trigger fines and, in repeat cases, imprisonment for responsible officers.

For US employers used to at‑will frameworks, this means performance management and restructuring decisions involving pregnant employees in India must be handled with particular care and legal review. SMEs often resist hiring women due to maternity leave costs, which is one reason compliance and anti-discrimination controls matter.

• Central and state government employees are covered by Civil Services leave rules and sectoral instructions, but india’s maternity leave in the public sector still mirrors the core 26‑week / 12‑week regime.

  For private employers, including foreign‑owned companies and startups, the same statutory maternity leave rules apply once they cross the 10‑employee threshold in a given establishment, making compliance with maternity leave policies and broader labor laws essential.

• If you hire through your own Indian subsidiary, that entity is the legal employer and must implement compliant contracts, HR policies, crèche arrangements, and payroll.

• If you hire via an Employer of Record (EOR) in India, the EOR is the legal employer but will pass the cost of paid maternity leave in india and related obligations back to you under your commercial agreement, while handling filings in India and inspections on your behalf.

Either way, the employee in India experiences maternity entitlement as a legal right, not a discretionary corporate perk, which matters in practice for working mothers managing family responsibilities.

This side-by-side reflects the underlying maternity leave regulations in each country. For US HR teams, this asymmetry means India often sets the “floor” for your global parental‑leave narrative: if you offer only the US minimum in India, it may look out of step with both local law and your employer brand.

A compliant maternity leave policy needs an operational workflow, not just a legal summary. A typical process for US companies looks like this:

1. Notice and acknowledgement (within 48 hours).

• Employee submits written notice stating pregnancy and intended leave start date (up to 8 weeks pre‑delivery for first/second child, 6 weeks for third+).

• HR acknowledges in writing, confirms entitlement (26 vs 12 weeks), and shares policy.

2. Eligibility and documentation check.

• Verify 80 days of work in the preceding 12 months and establishment headcount (10+).

• Collect medical certificate with expected due date; adoption or surrogacy documents for biological mothers, adoptive mothers, and commissioning mothers women as relevant.

3. Payroll and budget planning.

• Calculate average daily wage using last three months’ gross salary; estimate total cost for 26 or 12 weeks of paid maternity leave in india*.

• Confirm whether ESI applies and coordinate with the ESI Corporation where relevant.

4. Update HRIS and statutory filings.

• Record leave as a dedicated “maternity leave” category (not casual/earned leave).

• Ensure provident fund and other statutory contributions are correctly treated during leave.

5. Crèche and workplace support.

• If India headcount is 50+, confirm crèche facility or allowance in place before the employee returns.

6. Return‑to‑work planning (about four weeks before return).

• Discuss role, potential flexible work arrangements, and nursing-break logistics; document agreements, especially for second time mothers who may need tailored return planning.

7. Record‑keeping.

• Maintain maternity registers, notices, medical certificates, and payment records for at least three years, ready for inspection by the Inspector‑cum‑Facilitator.

For companies using an EOR in India, much of this workflow is handled by the EOR, but you should still understand the steps because they affect headcount planning and budgets.

Legal compliance is the floor for well-being; strong talent brands in India go further. Based on current market practice and what high‑performing competitors do:

• Keep statutory entitlements as the minimum, not the maximum.

• Many global employers add gender‑neutral parental leave for non‑gestational parents and extend benefits beyond the legal minimum to better support working mothers.

• Standardise policy across India locations.

• Use the central Code’s entitlements as a baseline and document any state‑specific overlays in an appendix, so managers aren’t guessing.

• Draft a standalone maternity and parental leave policy.

• Don’t bury entitlements solely inside employment contracts; publish an accessible policy in your HR portal.

• Mirror government best practices for private‑sector employees.

• Separate maternity leave from other leave types, keep it fully paid, and explicitly cover adoption, surrogacy, and miscarriage; clearer and broader policies can also help attract and retain more women.

• Align with your home‑market values.

• If your US or EU policies are more generous than India’s statutory baseline, consider extending similar benefits in India to avoid internal equity issues.

If you are a US firm hiring or planning to hire in India, “we’ll figure out maternity leave in india later” is a costly assumption. The combination of the Social Security Code, a rights‑driven Supreme Court, and one of the world’s most generous paid‑maternity frameworks means leave compliance needs to be designed into your India strategy from day one, protecting job security and helping employers build a more supportive environment for women employees.

For a first or second child, eligible women receive 26 weeks (182 maternity leave days) of fully paid leave, with up to 8 weeks taken before the expected delivery date. The maternity leave period is longer for the first two children, while the weeks of maternity leave are reduced from the third child onward. For the third and subsequent children, entitlement drops to 12 weeks (84 days), with up to 6 weeks pre‑delivery.

Yes. Chapter VI of the Code on Social Security, 2020 applies to all private establishments with 10 or more employees, regardless of whether the company is Indian or foreign‑owned, and mandates the statutory entitlements described above.

Maternity leave in india is fully paid for eligible employees. Pay is based on the employee’s average daily wage, typically the average gross salary over the three months before leave starts, divided by 26 – multiplied by the number of leave days. Bonuses and overtime are usually excluded; regular allowances are included.

Adoptive mothers and commissioning (surrogacy) mothers are entitled to 12 weeks of paid maternity leave from the date the child is handed over. Following the 2026 Supreme Court decision, there is no longer any age limit for the adopted child.

Yes. As long as the woman has worked at least 80 days in the 12 months before the expected delivery date in an establishment with 10+ workers, she is generally eligible, whether she is permanent, fixed‑term, or a contract worker via an agency; unlike systems that require long service with the same employer, Indian law focuses on days worked in the establishment. Gig workers may receive benefits via schemes as they are notified. Employees who meet these rules satisfy the statutory eligibility criteria to avail maternity leave.

The standard eligibility requirement is at least 80 days of work in the 12 months immediately preceding the expected date of delivery. Employers should track attendance and maintain accurate records to evidence this.

The law distinguishes based on the number of surviving children, not whether a birth is single or multiple. For women with fewer than two surviving children, meaning those with up to two children under the statutory threshold, 26 weeks’ leave applies (even in cases like twins); for women with two or more surviving children, the entitlement is 12 weeks.

India guarantees 26 weeks of fully paid leave for first and second children, plus 12 weeks for subsequent children, adoption, and surrogacy. In contrast, US federal law offers 12 weeks of unpaid, job‑protected leave under FMLA for eligible employees, with no universal paid‑leave requirement; some states add paid family leave on top.

When hiring via an EOR, the EOR is the legal employer, but you should: ensure employment contracts reflect the Code’s entitlements; decide whether to offer enhanced parental benefits; confirm who bears the cost of maternity pay in your commercial agreement; and coordinate on crèche and flexible‑work provisions.

Employees are not barred from resigning during or after maternity leave, but employers cannot coerce resignation or use pregnancy as a ground for dismissal. If an employee chooses to resign voluntarily, standard notice and settlement procedures apply; any statutory maternity benefit already due must still be paid.

Women working for establishments with fewer than 10 employees or as genuine independent contractors are generally outside Chapter VI’s direct coverage. However, they may be eligible for government schemes like PMMVY and state welfare programmes, and employers can always choose to grant contractual maternity benefits by policy.

The usual process is: notify HR in writing (often via HRIS) at least 6–8 weeks before the intended start date; attach a medical certificate with expected due date (or adoption/surrogacy documents); get written approval with confirmed dates; and complete task handover before leave begins.