Maternity leave and pregnancy: here's what you need to know

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Some of the most frequently asked questions RSM consulting agency encounters in practice revolve around the rights and protections of pregnant women in the workplace. This is part one of two articles which give answers to those questions.

What laws protect a pregnant employee and what are they protected against?

There are a number of laws that protect pregnant women and women on maternity leave, the most notable of the Acts and relevant sections are summarised below:

1. The Constitution of the Republic of South Africa Act 108 of 1996:

1.1.    Section 9 prohibits unfair discrimination on grounds of unlimited criteria including pregnancy.

1.2.    Section 27 established that everyone has the right to health care services including reproductive health care.

2. Basic Conditions of Employment Act 75 of 1997:

2.1.    Section 25 of the Act covers maternity leave and the provision of four consecutive months of unpaid maternity leave and the prohibition of an employee returning to work within six weeks of giving birth unless a medical practitioner or midwife certifies that she is fit to do so.

2.2.    Section 26 of the Act covers the protection of employees before and after the birth of a child from hazardous effects on their health or the health of their child.

3. Labour Relations Act 66 of 1995:

3.1.    Section 186 (1) (c) of the Act defines a dismissal to include situations where an employer refuses to allow an employee to resume work after she took maternity leave.

3.2.    Section 187 of the Act covers Automatically Unfair Dismissals on grounds of pregnancy, intended pregnancy or any reason related to her pregnancy.

3.3.    Section 193 of the Act covers Remedies for unfair dismissal and unfair labour practice.

3.4.    Section 194 limits compensation in respect of Automatically Unfair Dismissals to no more than 24 months of the employee’s remuneration.

4.    Employment Equity Act 55 of 1998:

Section 6 prohibits unfair discrimination against any employee on a wide range of grounds which include grounds of pregnancy. In terms of this act, the term “employee” includes applicants for employment.

5.    Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child:

The Code covers the legal requirements, protection of the health of pregnant and breast-feeding employees and the identification of hazards. The code touches on encouraging workplace policies to encourage women to inform employers of their pregnancy as early as possible to ensure that the employer is able to identify and assess risks or hazards and take appropriate preventative measures if necessary.

What are a pregnant employee’s legal obligations in declaring her pregnancy when a) applying for a job and b) telling her employer that she is pregnant?

•    In applying for a job, the candidate, as an applicant for employment, is protected in terms of the Employment Equity Act against discrimination on the grounds of pregnancy. For the purposes of the Employment Equity Act, applicants for employment are classified under the definition of “employee” and would be able to lodge a dispute as if they were employees.

•    In terms of the Basic Condition of Employment Act, employees must notify their employers at least four weeks before the employee intends to commence maternity leave. The notice must be given in regard to what date the employee intends to commence maternity leave and the date on which she intends to return from maternity leave.

•    Although the Basic Condition of Employment Act only requires that notice be given to the employer four weeks prior to the intended commencement of maternity leave, employees should bear in mind that the employer should be notified earlier in the best interests of the employee in order to be able to identify risks and hazards, as well as to best deal with emergency situations or sudden critical illness or injury while at work.

•    If an employee is working in a hazardous environment that may be harmful to the employee or her unborn baby, the employee should inform her employer as soon as she becomes aware that she is pregnant, so that measures can be taken to protect the employee and her unborn baby from any harm that may be caused as a result of the employee’s working environment. Should the employee not be at risk in terms of a hazardous work environment, or harmful substances, as a result of her employment, the employee should inform her employer of her pregnancy as soon as her medical practitioner advises her that it is safe to do so. In doing this, the employee allows the employer to make arrangements for her maternity leave in terms of the reallocation or redistribution of the employee’s work, and more importantly to be able to respond appropriately in the case of an emergency or sudden critical illness. The employee must bear in mind that she must, in the very least, give notification to the employer at least four weeks prior to the commencement of maternity leave, of the date of the intended start of maternity leave as well as the employees intended date of return to work.

Read part 2 here.

RSM is the 6th largest network of audit, tax and consulting firms in with world and has four South African offices in Johannesburg, Tshwane, Cape Town and Durban. Visit www.rsmza.co.zafor more information.

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