Can Indian Employers substitute one for the other?

The Maternity Benefit (Amendment) Act, 2017, was a watershed moment for women’s rights in the Indian workplace. It significantly extended paid maternity leave to 26 weeks and, equally importantly, introduced two critical support systems to help women transition back to work:

However, a critical and often debated question has emerged from the interplay of these provisions: Can an employer offer a work-from-home (WFH) arrangement to a new mother as a substitute for providing a physical crèche facility? Some employers may view this as a pragmatic, cost-effective alternative. But a deep dive into the letter and spirit of the law reveals that such a substitution is not only legally untenable but also fraught with significant risks.

This article provides an exhaustive legal analysis of the distinct nature of these two obligations and explains why one cannot be used to evade the other.

To understand the issue, one must first examine the specific legal text of the two relevant sections of the Act. They are not interchangeable; they are designed to be separate and distinct pillars of support.

This section lays down a clear and non-negotiable directive:

(1) Every establishment having fifty or more employees shall have the facility of crèche within such distance as may be prescribed, either separately or along with common facilities:

Provided that the employer shall allow four visits a day to the crèche by the woman, which shall also include the interval for rest allowed to her.

1. It is Mandatory, Not Optional: The language used is “shall have,” which in legal terms signifies a mandatory duty. It is not a choice or a benefit to be negotiated.

2. The Threshold is Employees not Women: The obligation is triggered the moment an establishment’s total employee count reaches 50. It is not based on the number of women employees, new mothers, or employees who wish to use the facility.

3. It is an Infrastructure Requirement: The law mandates a physical “facility.” This implies a dedicated, safe, and accessible space for childcare.

4. It Facilitates Physical Presence: The provision for four daily visits explicitly presumes that the mother is physically present at the workplace and needs proximate access to her child. This underscores the facility’s purpose: to enable women to return to the office.

This section introduces a flexible work arrangement:

In case where the nature of work assigned to a woman is such that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.

1. It is an “Option,” Not a Mandate: The language is “may allow,” making it a discretionary arrangement contingent on mutual agreement.

2. Applies Post Maternity Leave: This option is available only after the 26-week maternity leave period has been fully availed. It is a transitional support mechanism, not a part of the leave itself.

3. Conditional on Nature of Work: It is not a universal right. It is only applicable if the employee’s job role can be effectively performed remotely.

4. Requires Mutual Agreement: The terms, duration, and conditions of the WFH arrangement must be explicitly agreed upon by both the employer and the employee.

Attempting to substitute the crèche facility with a WFH option is legally flawed for several fundamental reasons.

Maternity leave is a statutory right to paid absence from work for the purpose of recovery and childcare. Forcing, encouraging, or even allowing an employee to work—from home or otherwise—during this protected 26-week period fundamentally violates the spirit and purpose of the Act. It negates the concept of “leave.” An employer who does this could be liable for penal action. Therefore, WFH is not a valid arrangement during the leave period.

The duty to provide a crèche under Section 11A and the option to allow WFH under Section 5(5) are legally distinct.

• The crèche obligation is an establishment-wide statutory duty triggered by employee headcount. It is a collective benefit available to all women employees.

• The WFH option is an individual-specific arrangement based on job role and mutual consent.

An individual employee’s decision to work from home after her leave does not and cannot absolve the employer of its statutory duty to the entire establishment. If a company has 55 employees, it must have a crèche facility, even if the one new mother on staff opts for a WFH arrangement. The facility must exist for other current or future women employees who may choose to work from the office and require it.

The legislative intent behind each provision is unique:

• Purpose of the Crèche: To remove a primary structural barrier that forces women out of the workforce. It provides a tangible, physical support system that allows a mother to be both a professional at her desk and a caregiver to her infant just a short walk away. It is designed to encourage and facilitate a woman’s reintegration into the physical workplace.

• Purpose of WFH: To provide flexibility and a smoother, less abrupt transition back into the workforce. It acknowledges that for some, an immediate return to a full office schedule may be challenging. It is an additional layer of support, not a foundational replacement for office-based infrastructure.

Using WFH to avoid setting up a crèche subverts the very goal of the crèche provision, which is to make the physical office a viable and welcoming place for new mothers.

Employers who attempt this substitution strategy expose themselves to significant legal, financial, and reputational risks.

• Direct Violation and Penalties: Failing to provide a crèche when required is a direct contravention of Section 11A. Under Section 21 of the Act, such non-compliance is punishable with imprisonment for up to one year, or with a fine which may extend to INR 5,000, or with both.

• Risk of Indirect Discrimination: Pushing WFH as the default or only practical option for new mothers can be viewed as indirect discrimination. It may effectively create a “mommy track,” sidelining women from roles that require a physical presence, in-person collaboration, and the informal networking crucial for career advancement.

• Negative Impact on Diversity, Equity, and Inclusion (DEI) and Retention: A company perceived as cutting corners on a critical, legally mandated welfare measure will damage employee morale and trust. It signals that support for working mothers is a matter of convenience rather than a genuine commitment, which can severely impact the retention of female talent.

• Opening the Door to Litigation: An employee who feels she was denied a promotion or key opportunity because she was compelled to work from home due to the lack of a crèche could have grounds for a legal challenge.

The answer to the central question is an unequivocal no. Employers cannot legally give work-from-home options to female employees, either during or after maternity leave, to evade their statutory obligation to provide a crèche facility.

The two provisions serve different purposes and create independent legal duties. The crèche is a mandatory infrastructural requirement for any establishment with 50 or more employees, designed to support women returning to the physical office. Work-from-home is a flexible, optional arrangement that can be offered after the leave period.

For employers, the path to compliance is clear: If your establishment meets the headcount threshold, you must provide a crèche. Viewing this as a non-negotiable legal duty—and not as an expense to be circumvented—is the only way to ensure compliance, mitigate legal risk, and build a truly inclusive and supportive workplace for all employees.