Handling a maternity benefit less than 80 days claim is one of the most misunderstood compliance questions for HR teams in 2026. You may run a start-up in Jaipur, a factory in Rajasthan, or the Indian arm of a foreign company. In every case the answer sits in the Code on Social Security, 2020, which replaced the Maternity Benefit Act, 1961 from 21 November 2025. A wrong decision can bring inspector action, litigation and reputational damage. This guide comes from a trusted law firm in Jaipur. It explains the rule in plain English and gives a process you can apply immediately. For official updates, see the Ministry of Labour and Employment. For tailored advice, visit Khanna & Associates.
What Is Maternity Benefit Less Than 80 Days? Simple Global Explanation
Maternity benefit is paid leave and related protection for a woman before and after childbirth. India sets a minimum service condition. Many countries grant leave from the first day of work, but India does not.
Under Section 60 of the Code, a woman qualifies only if she has actually worked in the establishment for at least 80 days in the 12 months immediately before her expected delivery date. The days need not be continuous. Days of lay-off and paid holidays count toward the 80.
Standard benefit is 26 weeks for the first two children and 12 weeks for the third child onward. Up to eight weeks may be taken before delivery. Pay equals the average daily wage. Women covered by the ESI scheme, which applies to wages up to ₹21,000 per month, claim through ESIC subject to contribution conditions.
So an employee with fewer than 80 days of work is generally not entitled to statutory maternity benefit. The decision still needs careful handling, as explained below.
Legal Framework and Regulations for Maternity Benefit in India
The main law is Chapter VI (Sections 59 to 72) of the Code on Social Security, 2020. Central and state rules, including Rajasthan’s rules, add procedure. Labour authorities inspect compliance. In March 2026 the Supreme Court also widened adoptive mothers’ rights by striking down the “child below three months” restriction.
Employers usually need layered support. Our employment lawyers and labour and service lawyers review leave policies and offer letters. Corporate compliance audits align HR practice with the new codes. Well-drafted contract drafting and legal agreements prevent later disputes. Cases may reach labour court cases, the Rajasthan High Court or the Jaipur District Court. Dispute resolution and corporate documentation services help settle matters early. Our business lawyers and corporate and commercial team support growing companies. Foreign investors can use our foreign direct investments and setting up business in India services.
Key Legal Insights, Compliance Rules and Timelines for Maternity Benefit Less Than 80 Days
- Count correctly. Include paid holidays and lay-off days. Count only the 12 months before the expected delivery date, not total service.
- Eligibility can shift. If the delivery date is later than first estimated, she may cross 80 days.
- Collect written notice and a medical certificate. Keep both on file.
- Reply in writing. Give a dated calculation, not a verbal refusal.
- Never dismiss because of pregnancy. It carries serious litigation risk even where benefit is not payable.
- Check ESI coverage. An eligible woman may claim from ESIC, not from you.
Example: An employee joins on 1 November 2026 and her expected delivery date is 15 January 2027. She will have about 75 calendar days of service, so she is below 80 even before weekly offs. The employer is not bound by the statute. It may still offer unpaid leave or a policy-based benefit.
Cross-border use case: Expatriates on Indian payroll are covered like any employee. If a global policy is more generous, apply the better terms and record this in writing.
Records to keep: attendance registers, the notice, the medical certificate, the 80-day calculation and your reply.
Common Mistakes and Legal Challenges for Indian and Foreign Employers
- Counting only “working days” and ignoring paid holidays and lay-off days.
- Measuring from the joining date instead of the 12 months before delivery.
- Refusing orally, with no documented reasoning.
- Terminating the employee during pregnancy.
- Ignoring state rules and updates under the new codes.
- Overlooking ESI coverage and cross-border payroll differences.
Khanna & Associates prevents these errors with eligibility checklists, policy drafting and manager training. If a claim becomes a dispute, our team handles replies, hearings and settlements. As a best law firm in Jaipur, we give employers practical, defensible advice.
Expert Tips from Leading Legal Advisors on Maternity Benefit Less Than 80 Days
- Mitigate risk: Use a standard calculation sheet for every claim.
- Be flexible by policy: Many employers grant unpaid or discretionary leave to retain talent. State clearly that it is not a statutory entitlement.
- Align global policies: Multinationals should map group policy against Indian law before hiring.
- Plan India entry: Build leave rules into offer letters and handbooks before the first hire.
- Structure for the long term: Review HR policies every year as central and state rules change.
Conclusion: Manage Maternity Benefit Less Than 80 Days With Confidence
The key points are simple. The Code requires 80 days of work in the 12 months before the expected delivery date. Count carefully and document every step. Do not dismiss the employee because of pregnancy. Use policy-based support where it suits your business. Expert review protects both the employer and the employee.
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Khanna & Associates
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FAQ
1. Is an employee with less than 80 days of service entitled to maternity benefit?
Generally no. The Code on Social Security, 2020 requires 80 days of actual work in the 12 months before the expected delivery date. Paid holidays and lay-off days count. If she falls short, statutory benefit is not payable. The employer may still offer leave by policy.
2. Do the 80 days have to be continuous?
No. The 80 days can be spread across the 12 months before expected delivery. Employers should add up all days actually worked, plus paid holidays and lay-off days. A clear written calculation protects the company if the claim is later challenged before a labour authority.
3. Can an employer terminate a pregnant employee who has worked less than 80 days?
Termination because of pregnancy is risky even where maternity benefit is not payable. It can trigger discrimination claims and litigation. Employers should record genuine, unrelated reasons and take legal advice before acting on any such case.
4. Can the employer offer leave if the employee is not eligible?
Yes. Many employers grant unpaid or discretionary leave to retain talent. State clearly in writing that this is a policy benefit and not a statutory entitlement. Apply the policy consistently to avoid claims of unfair or discriminatory treatment.
5. Who pays maternity benefit if the woman is covered by ESI?
If the woman is covered by ESI and meets the contribution conditions, ESIC pays the benefit. The wage ceiling is ₹21,000 per month. Employers should check coverage, make timely contributions and help the employee file the claim correctly.