Creche Obligations for Employers under the Labour Codes

The creche requirement began in the Factories Act, 1948, as a facility for women working in factories. The Maternity Benefit (Amendment) Act, 2017 widened it beyond factories by inserting Section 11A into the Maternity Benefit Act, 1961, making it a general statutory obligation on covered establishments. The labour codes then split that inheritance across two enactments: Section 67 of the Code on Social Security, 2020 and Section 24 of the Occupational Safety, Health and Working Conditions Code, 2020. The wording largely reproduces the earlier law, but the placement of each provision changes how the duty reads.

Under Section 67 of the SS Code, any establishment with fifty or more employees must provide a creche within a distance the Central Government prescribes, separately or as part of common facilities. The threshold counts employees without reference to gender, but the section sits inside Chapter VI, the maternity benefit chapter, whose definitions and duties are framed around women employees.

Under Section 24 of the OSH Code, the appropriate government may require establishments employing more than fifty workers to provide creche facilities. This provision sits in the welfare chapter, not the maternity chapter, and covers factories, mines, plantations, building and construction establishments, beedi and cigar manufacturing premises, motor transport undertakings and dock work establishments.

The Social Security (Central) Rules, 2026 let an employer pay a creche allowance instead of running a facility. The substitution is not the employer's unilateral choice: it requires an agreement with the negotiating union or negotiating council, and where neither exists, with a majority of the employees. The Rules extend allowance eligibility to widowers and single parents with children below six years of age. The single integrated annual return filed under the four codes treats the allowance as an alternative to the facility under both codes.

The Ministry of Labour and Employment's FAQs of 16 March 2026 state that the creche facility is available to employees irrespective of gender, and the OSH Code's welfare framing supports that reading. The SS Code pulls the other way: its creche provision lives in the maternity chapter, and the allowance that substitutes for the facility is available only to women employees, widowers and single male parents.

The authors' harmonious construction resolves the tension this way: the OSH Code prescribes the facility as a workplace welfare standard once the headcount is met, while the substantive entitlement to use it flows from the SS Code's social security framework, which points primarily to women employees and the expressly named categories. Until a court or a further clarification settles the point, employers should treat the facility duty as headcount-triggered at establishment level, and treat access and the allowance as governed by the SS Code's narrower entitlement classes.