Maternity leave

Employers should be aware of maternity leave and what their employees are entitled to when they are pregnant and what obligations employees have towards the employer.

What is an employee entitled to with regards to maternity leave?

An employee is entitled to four consecutive months’ maternity leave and should inform the employer in writing at least four weeks before the commencement of the maternity leave, of:

  • the date on which the maternity leave will commence; and
  • the date when the employee will return to work.

Maternity leave may begin at any time from four weeks before the birth of a child, or earlier if a medical practitioner certifies that it is necessary. An employee may not work for a period of six weeks after the birth of a child, unless a medical practitioner certifies that the employee is able to do so.

Maternity leave is unpaid leave. The employee may however claim from the Unemployment Insurance Fund (UIF) if they have been contributing to the Fund.

In the event of a miscarriage during the third trimester of pregnancy, or a stillborn child, the employee is entitled to six weeks’ maternity leave after the miscarriage or stillbirth.  It doesn’t matter whether or not the employee has commenced maternity leave at the time of the miscarriage or stillbirth.

What is the employer’s responsibility?

The Basic Conditions of Employment Act prohibits employers from requiring or permitting a pregnant or nursing employee, to perform hazardous work.

An employer must offer suitable alternative employment to an employee during pregnancy and for a period of six months after the birth of her child.  Especially if the employee is required to perform night work, or if her work poses a danger to her health or safety or that of her child, unless it is not practicable to do so.  Alternative employment must not be less favourable than the employee’s ordinary terms and conditions of employment.

When returning after maternity leave, the employee must be placed back in her position.  The employer may not dismiss an employee during maternity leave as this will be regarded as an automatically unfair dismissal.  The Commission for Conciliation Mediation and Arbitration (CCMA) can then issue an award for compensation of an amount up to 24 months’ remuneration.

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LWO Regsadviseur - LWO Legal Advisor

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