Maternity leave entitlement has become a globally debated issue and maternity leave varies from country to country. Some countries insist on the practice of requiring employees to return to work 6 weeks after birth and others allowing up to a year of paid time off.

Maternity Leave in South Africa

In South Africa, women are entitled at least four consecutive months’ maternity leave in terms of the Basic Condition of Employment Act 1997 (“the BCEA”). An employee may return earlier than this if she wishes, but may not return before 6 weeks after the birth has passed, with the exception of certification from a medical practitioner that the employee is fit to return to work.

The leave may be taken from four weeks before the expected date of birth, unless otherwise agreed; or on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee’s health or that of her unborn child.

The employee is not compelled to inform the employer of her pregnancy, but must either notify or inform the employer of the following at least 4 weeks before she intends to take maternity leave:

• The date of commencement of the maternity leave; and
• Her intended date of return from maternity leave

Where the employee has a third trimester miscarriage (i.e from 27 weeks of pregnancy until the end of the pregnancy), or bears a stillborn child, she will be entitled to six weeks of maternity leave following the birth or miscarriage, regardless if she had already commenced maternity leave.

Payment

Although employees are entitled to four months of maternity leave, payment in respect of such period is determined by the contract of employment, or by company policy applicable to employees. Certain contracts of employment cater for fully paid maternity leave, whilst others allow for only a portion to be paid, with the balance to be claimed from the Unemployment Insurance Fund.

Safety and other issues

In addition, according to the Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child (“the Code”) lactating employees who return to work are also entitled to two thirty minute breaks for expressing milk during the day on a paid basis.

Further, the Code provides that, leading up to the period of leave, and whilst the employee is pregnant, the employer should create a safe environment for the employee. No employer may permit or require a pregnant employee to perform work which is hazardous to the employee or her unborn child’s health.

If the employee performs night work or work which is hazardous, the employer must during the pregnancy and 6 months after the birth provide suitable alternative employment on terms which are not less favourable than the pregnant employee’s current terms of employment, provided this is practical to the employer.

Who does the work while the employee is away?

It is permissible to hire a temporary replacement on a Limited Duration Contract. This is allowed in terms of the Labour Relations Act. The contract ends when the employee who went on maternity leave returns.

There is also the option of allowing other staff to absorb the work during the time that the employee is away. The employer will have to weigh its options as to what will be the best solution taking into account all the circumstances.

What about annual leave and extended periods of leave?

Annual leave continues to accrue during maternity leave.  The employee may extend their paid leave by using annual leave – and often employees do this, especially where they have large leave balances available. In other instances, the employer and employee may agree to an extended period of leave on an unpaid basis. However, this is based on agreement between employer and employee.

Dismissal of a pregnant employee after maternity leave:

The Labour Relations Act 1995 (“the LRA”) provides that the dismissal of an employee on account of her pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically unfair. The definition of dismissal in section 186 of the LRA, includes the refusal to allow an employee to resume work after she has taken maternity leave in terms of any law, collective agreement or her contract of employment.

Employers should bear the following in mind regarding maternity leave:

• Employers should ensure that their UIF documents and payments are up to date.
• They cannot allow the employee to return to work before 6 weeks after the birth of the infant, unless a doctor has certified the employee as fit to return to work.
• Employers are not obliged to pay the employee for the period, unless this is set out in the contract of employment or workplace policy.
• Employers are entitled to hire temporary employees, provided the contract with the temporary employee specifically sets out that it is a temporary contract to perform the role of an employee on maternity leave.
• An employee who tenders their services after maternity leave, should be allowed to take up their positions again. Upon returning from maternity leave, if the role is no longer required and none other suitable role can be found, the appropriate retrenchment process should be followed.

Employees should bear the following in mind regarding maternity leave:

• Although it is not necessary to inform your employer of your pregnancy until four weeks before you intend going on leave, doing so may assist you to arrange a smooth handover of duties where another employee takes over your responsibilities or a temporary employee is hired, as well as to allow you to arrange your leave and arrange with your employer to complete the necessary UIF forms, if you are claiming from the UIF.
• You remain entitled to annual leave and may use this to extend your paid leave period.
• If you do not want to return to work and would prefer to resign, this should not impact your claim for maternity benefits (but not unemployment benefits) from the UIF. Usually, if you resign, you will not be able to claim from the UIF, but maternity leave is one exception to this rule.

Conclusion

If you require any advice in respect of maternity leave, including assistance with policies and contracts of employment, please feel free to contact us.

Author 
Tarynne Willis