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:
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.