In the year 2017, the Maternity Benefit Act, 1961 (“Act”) was amended by way of which employers engaging 50 (fifty) or more employees were mandated to provide a crèche facility to its employees (“Crèche Requirement”). The Crèche Requirement came into effect on 1 July 2017. However, due to lack of clarity on certain aspects of the Crèche Requirement there were few uncertainties and irregularities with respect to employers’ compliance with the same. In light of this the State Government of Karnataka had published the draft Karnataka Maternity (Amendment) Rules, 2018 (“Draft Rules”). The Draft Rules provided certain crucial inputs on the Crèche Requirement. After much deliberation, the Draft Rules have been formulated into the Crèche Rules.
The requirements under the Crèche Rules are as follow:
- Applicability of the Crèche Rules: Every establishment in the State of Karnataka that engages 50 (fifty) or more employees is required to have a crèche facility for its employees’ children who are below the age of 6 (six) years. An establishment is required to maintain 1 (one) crèche facility for every 30 (thirty) children of its employees, who are below the age of 6 (six) years. An employer is required to provide the crèche facility to all its employees, irrespective of the fact whether they are permanent, temporary, regular, daily wage, contract employees. The use of the term ‘employee’ here (in place of female employees) indicates that the employer’s obligation to provide a crèche facility is gender neutral and not specific only to its female employees.
- Location of the Crèche Facility: The crèche facility should be located within the establishment or within 500 (five hundred) meters from the entrance gate of the establishment. The crèche facility should be conveniently accessible to the employees, but however it shall not be situated close to any establishment which releases obnoxious fumes, dust or odours or close to establishments engaged in excessively noisy processes.
- Infrastructural Requirement: The Crèche Rules provide for detailed infrastructural requirements inter alia with respect to: (i) the construction materials to be used for building the crèche facility, (ii) the ventilation requirement and the fire safety norms to be followed at the crèche facility, (iii) height of the room and floor area for each child at the crèche, (iv) the hygiene and sanitation level to be observed, specifically with respect to the kitchen and washroom requirement at the crèche, and (v) provision of safe toys and an outdoor playground for the children. There should not be any unsafe places like open drains/pits near the crèche facility.
The Crèche Rules also provide for the list of equipment that shall be necessarily provided by the employers at the crèche, namely: (i) cradles or cots; (ii) Beds or mattresses; (iii) cotton sheets; (iv) utensils to feed the children; (v) sitting accommodation for parents to attend to the children or feed the children; (vi) rubber sheets for children below the age of 3 (three) years; (vii) blankets and pillows; (viii) child friendly furniture and toys; and (ix) first aid kit and medicinal kit. The overall eco-system of the crèche facility should be clean, safe, secure and child friendly.
- Crèche Timings: The crèche facility should be kept open at all times (both during day and night). The working hours of the crèche should correspond to the working hours of the mother or father of the children admitted to the crèche. The crèche shall function in 2 (two) or more shifts if the women employees whose children have been admitted to the crèche, works in 2 (two) or more shifts as per statutory norms, spread over a period not exceeding 8 (eight) hours a day. If in case the crèche is required to function in different shifts, the crèche shall engage different staff to work for different shifts, subject to the provisions of working hours under applicable norms.
- Clothing: Both the staff members of the crèche and the children admitted in the crèche should be provided with uniforms to be worn within the crèche. Further, the crèche should have adequate supply of clean clothes for the children along with other ancillary items such as soap and oil.
- Food Supply: The crèche should have adequate supply of milk for the consumption of the children. Further, for children above the age of 2 (two) years there should be adequate wholesome refreshment for them at the crèche facility. However, the Crèche Rules fails to clarify whether the parents or the crèche service provider should be responsible for preparing the daily meals for the children. Further, if the crèche is preparing the meals for the children, it would comply with specific standards of nutrition and with the applicable food safety laws.
- Staff Requirement: The Crèche Rules state that a woman who has a Government approved or recognized qualification and training in “Early Childhood Care and Education” or “Teachers Course Higher” (“Qualification”) or equivalent qualification shall work as crèche-in-charge”. Further, the crèche shall also have a crèche attendant who shall be a woman with midwifery qualification or training. If the number of children admitted in a crèche exceed 10 (ten), female ayahs shall be appointed to assist the crèche attendant. 1 (one) ayah should be appointed for: (i) every 10 (ten) children up to 3 (three) years of age; and (ii) every 15 (fifteen) children of over 3 (three) years of age.
- Medical Records: The Crèche Rules stipulate that before being admitted to a crèche facility, every child should be medically examined. Such medical check-up should also be conducted once in every 2 (two) months and the Body-Mass-Index of the children shall be recorded every month. The above records pertaining to the children shall be maintained at the crèche facility.
- Compliance: The Crèche Rules state that an employer is required to comply with the standards and norms provided by the Central and State Government or their official agencies with respect to a crèche, such as the National Minimum Guidelines for Setting Up and Running a crèche published under the Act by the Ministry of Women and Child Development, Government of India. (1)
The notification of the Crèche Rules is a positive step towards providing an inclusive and wholesome workplace to the employees. To a large extent it succeeds in clarifying the operational uncertainties of the employers. However, certain obligations under the Crèche Rules seem to be very burdensome for the employers. It is often seen that crèche service providers charge a very hefty fees for providing the crèche facility. It may not be possible for all employers to bear such financial burden for its employees. Therefore, in this regard it is important to set a fee limit which can be charged by such crèche service providers.
Further, the requirement for an employer to have an in-house crèche facility or a crèche facility within 500 (five hundred) meters from the entrance gate of its establishment may prove to be quite cumbersome. Many of the employers may not have the infrastructural requirement to set up an in-house crèche facility or have a crèche facility that is located within 500 (five hundred) meters from its entrance gate Therefore, such employers will remain non-compliant with the Crèche Requirement unless a crèche facility is set up within such limits. Further, crèche facilities that are located within tech parks, office building, or common workspaces may not have the necessary infrastructure for an outdoor playground. Certain exceptions to this requirement should be carved out for such small scale crèche service providers.
Additionally, the employer may not be in a position to comply with certain obligations stated under the Crèche Rules for example, the employer may not be in a position to ensure there is adequate equipment, food and cloth supplies at the crèche, or ensure that the kitchen and washrooms are hygienically maintained. Therefore, the employers shall ensure that such responsibilities are contractually passed on to the crèche service provider. Further, the employer should conduct adequate background verification and diligence before engaging the crèche service provider.
While the effort of the Karnataka Government for improving the working conditions of employees if undoubtedly commendable, there are certain issues that needs to be addressed for smooth and effective implementation of the Crèche Rules.