Maternity Rights revisited

BY : Bridgette Beetge-Magnus | Bax Kaplan Russell Inc

With the recent amendments to the Basic Conditions of Employment Act of 1997 showcasing the rights of fathers / nonbiological parents after the birth of their child, many of the rights of the pregnant employees and indeed breastfeeding employees have been forgotten. These are contained in the Constitution, the Labour Relations Act, the Basic Conditions of Employment Act and the “Code of Good Practice: Protection of Employees during Pregnancy and after the Birth of the Child”.

Major maternity rights for employees (and consequent employer obligations) are as follows:

• Not to be dismissed for being pregnant
• To be granted four months maternity leave commencing from either four weeks before the expected date of birth, or from the date she is booked off by a midwife / medical practitioner
• In the event of a miscarriage in the third trimester, or where there is a stillbirth, to be granted six weeks maternity leave from that date. (Although it is unclear what leave is due to a mother who gives her child up for adoption/ surrogacy, it is suggested that six weeks post birth be granted.)
• To return to work, should she wish, from six weeks after the date of birth of the child, or earlier, if certified safe by a midwife or medical practitioner
• With Adoptive / Commissioning Parents (in the case of Surrogacy), one parent is entitled to 10 weeks maternity leave post acquiring the child, whilst the other parent qualifies for the ordinary 10 days “parental” leave
• If breastfeeding or expressing, an entitlement arises to two 30 minute breaks, over and above ordinary breaks, for that purpose, every working day, until the child reaches six months
• To be provided with light duties where her ordinary work is physically strenuous
• To be provided with a proper chair with lumbar support rest if her work is sedentary.

Employees are reminded to advise their employer timeously that are pregnant, so that their employer may place them on their Pregnancy Register, and in order for maternity rights to become applicable.

Employers are advised to be mindful of the rights afforded to pregnant employees, as well as to the unborn child, which the courts, as well as the Department of Labour, are strict to enforce. Failure to offer a safe environment to pregnant employees can result in compliance orders, legal proceedings and fines.

S26(1) of the BCEA confers an obligation upon employers to protect both pregnant and breastfeeding employees. This imposes a duty upon employers to initially perform a risk assessment pertaining to each individual pregnant employee upon being informed of the pregnancy in relation to her job and health. Thereafter the employer must identify and assess hazards which may be physical, ergonomic or chemical, and guidelines are given in the Code on how to limit risks. A prohibition (with an escape clause) on work which may pose a danger to the health of the employee or her child is contained in the code, as is a limitation on night work. Where an employer is obliged (and able) to offer alternative employment, the same must be on conditions no less favourable to the employee than she enjoyed pre-pregnancy.

It is recommended that employers draft policy in relation to Pregnancy Rights and Obligations and that their Employment Equity Committee and/or Employee Wellness Department be trained on it for awareness and implementation.