When it comes to Maternity Leave, here is what employers and employees need to know
The Basic Conditions of Employment Act (BCEA) (Section 25) entitles the pregnant employee to at least four consecutive months’ unpaid maternity leave. It further stipulates that the maternity leave must commence no later than four weeks before the expected date of birth of the child. The employee may return to work before the six weeks period has expired since the date of birth, provided that the employee has a medical certificate from her medical practitioner or midwife, declaring her medically fit to resume work.
An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth.
The employee is to place in writing to the employer the date on which she expecting to go on maternity leave and the date on which she intends to return to work. The employer has to keep the employee’s job (or similar position) for her to return to after the birth of her child.
The employer does not have to pay the employee while on maternity leave, as the employee qualifies for unemployment benefits. However, there is nothing preventing the employer from paying the employee, provided that this payment is declared on the UI-19 form submitted when the employee goes on maternity leave.
Pregnancy is deemed to be a listed ground for discrimination, so if the employer discriminates against the employee based on her pregnancy, the employer risks having to defend a case in the Labour Courts.
Questions and Answers
Can an employee carry over maternity leave?
Section 25 of the Basic Conditions of Employment Act (BCEA), states that an employee is entitled to four consecutive months of maternity leave. “Consecutive” is to follow one after another in uninterrupted succession.
Can an employee give notice while on maternity leave?
An employee could resign while on maternity leave, provided that she works her full notice period upon completing her maternity leave. If she does not do so, you can sue her for breach of contract.
Can you force an employee to take a pregnancy test?
You cannot discriminate based on pregnancy therefore you cannot send an employee for a pregnancy test. There is, however, an exception to this and that is when an employee is working in a “dangerous” environment such as a chemical factory. The “danger” would be the potential hazard to the employee and her unborn child, whilst going through pregnancy.
If not being pregnant is an inherent requirement of the job, you have the right to force an employee to undergo a medical test. For this reason, it is important to make sure that the employee’s employment contract states that for the health and safety of pregnant employees and their unborn children, employees must disclose their pregnancy as soon as they’re aware.
Do’s and don’ts on the handling of pregnant employees.
- Don’t assume that your employee is pregnant – this could result in all sorts of legal wrangles.
- Don’t discriminate against or dismiss an employee because she is pregnant.
- Remember that the law also protects potential employees- you must give their application the same fair and equal consideration as all other applicants.
- Let your employees be the ones to advise you if someone is pregnant.
Contact Cape Labour.
For more information about maternity leave or any other labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.
For more information or to Contact Cape Labour. You can find all of our relevant details here.
W.Tel no.: 021-423-3959