FAQ on Creche , Nursing Breaks

a.       Paid/Unpaid Breaks

         The “Nursing Breaks” is provided as benefit for the female employee mothers towards their child under Maternity Benefit Act, 1961. As per Sec 11 of the said Act, Every woman delivered of a child who returns to duty   after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen   months.

b.      Duration of Entitlement

  As specified above , upto 15 months of the child’s age.

c.       Number/Duration of Daily Breaks – specifically what does prescribed duration for the break construe?

   Each of the two breaks allowed to a woman under section 11 shall be of fifteen minutes duration: Provided that, having regard to time reasonably required to a woman, for reaching the creche or the place       where her child is kept by her while on duty and for coming back to the place of duty, the duration of each such break shall be extended by not less than five and not more than fifteen minutes, and where 

      there is a dispute as regards the time reasonably required by a woman for the aforesaid purpose, each such break shall be extended by such time as may be determined by the Competent Authority.

d.      Nursing Facilities - What the nursing facility should be equipped with under the relevant act ?

  There is no provision of Creche under Shops & Establishment Act or Maternity Benefit Act, however the requirement of Creche is under Factories Act for female staff above 30. However, if you wish to still provide nursing facility , following are the guidelines :-

   1) The creche shall be conveniently accessible to the mothers of the children accommodated therein and so far as is reasonably practicable it shall not be situated in close proximity to any part of the office 

                                   or in which excessively noisy processes are carried on.

   (2) The building / facility  in which the creche is situated shall be soundly constructed and all the walls and roofs shall be of suitable heat-resisting materials and shall be water-proof. The floor and internal walls of the creche shall be so laid or finished as to provide a smooth impervious surface.

    (3) The height of the rooms in the buildings shall be not less than 3.75 metres from the floor to the lowest part of the roof and there shall be not less than 2 square metres of floor area for each child to be accommodated [subject to the condition that the area of the creche shall not be less than 10 square metres

    (4) Effective and suitable provision shall be made in every part of the creche for securing and maintaining adequate ventilation by the circulation of fresh air.

    (5) The creche shall be adequately furnished and equipped and in particular there shall be one suitable cot or cradle with the necessary bedding for each child:

   Provided that for children over two years of age it will be sufficient if suitable beddings made available and at least one chair or equivalent seatings accommodation for the use of each mother while she is feeding or attending to her child and a sufficient supply of suitable toys for the older children.

    (6) A suitable fenced and shady open air play-ground shall be provided for the older children.

e.      What kind of records are required to be maintained by the employer?

  As far as nursing breaks are concerned, the compliance under Maternity Benefit Act is to maintain Form 10 - Maternity Benefit Register.

Queries on Leave without pay and compliance surrounding the same

1)     While an employee is on leave without pay (LWP) due to maternity/illness/absconding etc. either approved or not, given that employee is not getting any salary  – is it mandatory to pay 50% of HRA to the employee during this period of leave?

  HRA or any other allowance given as part of salary and not reimbursement would be included. Please note the definition of wages as per Maternity Benefit Act and Bombsy Shops & Establishment Act (referring to payment of wages Act) includes everything

Maternity Benefit Act

"wages" means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes-

(1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to ;

(2) incentive bonus; and

(3) the money value of the concessional supply of foodgrains and other articles, but does not include-

Bombay Shops & Establishment Act read with Payment of Wages Act

"wages" means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment

but does not include-

the value of any house-accommodation, or of the supply of light, water, medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of the Appropriate Government ;

Thus if it is excluding the components of salary, you need to give, else you need not give during LWP. 

2)     During the LWP whether employer can stop the PF contribution?

  PF is deducted on earned Basic + DA. Since there is no earned Basic + DA during Leave Without Pay, there cannot be any PF deduction. 

3)     With respect to earned leave – AS per our policy, the leave is accrued. i.e. 1.6 days accrues after one month of work.  What is the position if employee is on LWP? What about employee who proceeds on paid maternity and then avails three months unpaid leave (as per our policies)? Is she entitled to the 1.6 accrued leave each for the 3 months of LWP?

Maternity Leave or Maternity benefit of 84 days as per Maternity Benefit Act should not be mixed with general leaves as per Shops & Establishment Act or company policy whichever is higher.  However, female employees who avail leave on and above of provisions of Maternity Benefit Act would come under general provisions as per Shops & Establishment Act or leave policy , whichever is higher. In the above given scenario, the accrued leave to be deducted for three months of additional leave without pay which is outside purview  of Maternity Benefit Act