Créche/Nursery Facility at Workplace - Indian Legal Framework

By Suma R V - King Stubb & Kasiva

October 20, 2022

Female labour participation in India is one of the lowest in the world. As per the National Minimum Guidelines for Setting up and Running crèche (nurseries) issued by the Ministry of Women and Child Development, the lack of safe and quality childcare support is one of the contributing factors to the low female labour participation.

India has enacted various laws for the protection of women and children. Different laws regulate childcare at workplaces. However, some of these laws are either industry-specific or location-specific.

As per The Factories Act of 1948, the employers of factories with more than 30 women workers shall maintain a suitable room or rooms for the use of children under the age of 6 years. Such rooms shall provide adequate accommodation, adequate light, and ventilation, maintained in a clean and hygienic condition, and shall be under the charge of women trained in the care of children and infants.

The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, which is applicable to certain construction sites, contains similar provisions, however, the requirement to set up a crèche is only triggered when 50 female building workers are ordinarily employed in a construction site.

India also introduced the Maternity Benefits (Amendment) Act, 2017, which requires establishments with 50 employees to provide crèche within such distance as prescribed by the concerned government, either separately or along with common facilities. The employer shall also allow 4 visits a day to the crèche by the women. The maternity-related benefits available to women shall be intimated in writing and electronically to them at the time of their initial appointment. 

Pursuant to the introduction of the said Amendment Act, the Ministry of Women and Child Development issued the National Minimum Guidelines for Setting up and Running Créche, which emphasizes the extension of crèche facility to children of the age group of 6 months to 6 years of all employees including temporary, daily wage, consultant and contractual personnel. As per the said guidelines, crèche timings should suit the parents’ needs and must have a minimum space of 10 to 12 sq. ft. per child to ensure that children can play, rest, and learn. The guidelines also set out norms and standards to be followed in a crèche.

In a case(1), the High Court of Himachal Pradesh upheld that the employer shall provide a crèche facility in accordance with the Amendment Act and National Minimum Guidelines.  In this case, the court categorically affirmed the action of a woman employee in not resuming work after availing maternity leave sanctioned to her for want of a crèche facility.

Apart from the above laws, some States such as Maharashtra and Gujarat have introduced crèche-related provisions in their respective Shops and Establishments Acts.

The above being some of the existing laws that regulate crèche facilities at the workplace, the Code on Social Security, 2020 under the New Labour Codes also contains crèche-related provisions. As per the said Code, the employers may avail common crèche facility provided by either the Central Government, State Government or municipality or private entity or NGO, or any other organisation or group of establishments.  Further, the draft Central Rules framed under the said Code states that the crèche facility shall be located within the establishment or at an appropriate distance from the establishment such that it is easily accessible to the women employees including a woman employee working from home.

Looking forward

The above being the laws (both existing and proposed) regulating crèche facilities at workplaces, there are practical difficulties in implementing the same in establishments. The lack of infrastructure, space constraints, flexible work practices and cost of maintenance of the crèche are some of the issues being faced by the companies. For employees in metros and other cities, the commute to workplaces by employees with children may be an arduous task.

Nevertheless, the companies shall comply with the applicable legal requirements. However, it is necessary that the law-enforcing authorities and courts adopt a pragmatic approach to handling the cases of non-compliance with crèche related provisions.

(1) Bahra University vs. Pooja Bhardwaj and Ors. (27.07.2021 - HPHC) : MANU/HP/0340/2021