My employee is pregnant, what now?
The Employee’s responsibility:
A female employee is entitled to four consecutive months’ unpaid maternity leave, during which she can claim benefits from the Unemployment Insurance Fund (UIF). Maternity leave may commence four weeks prior to the expected due date, or any other date as determined by a medical practitioner or midwife. For at least six weeks after the birth of a child, the employee may not work, unless a medical practitioner or midwife certifies that the employee may return to work. In the event of a miscarriage in the third trimester or in the event of a still birth, the employee is entitled to six weeks’ maternity leave.
It is also the employee’s responsibility to:
- notify the employer within a reasonable time of the pregnancy, but no later than four weeks prior to the commencement of maternity leave.
- claim benefits from the UIF. She may apply at the offices of the Department of Labour, or she may register electronically and complete the documentation on the UIF website.
What is the employer’s responsibility?
Every employer has an obligation to create a safe working environment for all employees and an employer may not force or allow an employee to work under conditions that are dangerous for the unborn child or for a nursing mother. During a period of six months after birth, while the employee is nursing, the employer has to provide the employee with suitable alternative employment if there is a possibility that damaging conditions exist in the workplace that may have a negative influence on the employee’s health.
It is also the employer’s responsibility to:
- ensure that all UIF payments are up to date;
- provide the employee with the following information and documentation prior to the commencement of maternity leave, enabling her to proceed with her claim:
- UI 2.7-form
- UI 10-form
- UIF registration number
Employers have the following questions:
- Can the employer calculate an annual bonus (if applicable) pro rata?
In the Contract Cleaning Sector an employee is entitled to an annual bonus and an employer will have to pay the full bonus if the employee was on maternity leave, as pregnancy does not interrupt employment. If a partial bonus is paid because the employee was on maternity leave, it may be seen as unfair discrimination based on pregnancy.
- How does maternity leave influence an employee’s annual leave?
The Basic Conditions of Employment Act states that an employee is entitled to 21 consecutive days’ annual leave. An annual leave cycle is a period of 12 months from commencement of the employee’s term of service or the completion of a previous leave cycle. The employee remains in the service of the employer during maternity leave and there is no interruption in service. Therefore the leave cycle is also uninterrupted and the employee is still entitled to her annual leave.
- Can male employees apply for maternity leave?
Male employees are not entitled to maternity leave and can apply for family responsibility leave and annual leave, if available, when a child is born.
We strongly recommend that employers act proactively and implement a policy and procedure to regulate conduct between the employer and employee in this regard. Ensure that the policy clearly outlines any additional benefits other than UIF as agreed upon, if applicable. The policy can also make provision for sufficient time for the employer to appoint and train a suitable person for the maternity leave period. A fixed term contract of employment may be used for this period.
To ensure that labour risk is sufficiently limited and managed, it is advisable to make provision for a clause in female employees’ contracts of employment that regulates maternity leave to prevent any uncertainty and disputes.
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