Section 25 of the Basic Conditions of Employment Act sets out the guidelines regarding maternity leave.

A pregnant employee may commence maternity leave at any time from four weeks before the expected date of birth unless otherwise agreed or at any time a medical practitioner deems fit for health reasons of either the mother or baby.

It is, however, important to note that no employee may work for six (6) weeks after the birth of her baby unless a medical practitioner or midwife has authorised this.

An employee going on maternity leave must notify the employer thereof in writing unless they are for some reason unable to do so. This notice should be given at least four weeks before the commencement of the leave. This written notice should also inform the employer when the employee intends to return to work after such maternity leave. The four-week notice period will obviously not be applied should it not be practicable to do so, for example, in emergency situations and such instances, notice should be given as soon as is reasonably possible.

Should an employee miscarry during the third trimester of pregnancy or give birth to a stillborn child, the employee will be entitled to maternity leave for a period of six (6) weeks after the miscarriage or stillbirth. This will come into effect whether the employee had commenced maternity leave at the time of the miscarriage or stillbirth, or not.

Provisions contained in the Unemployment Insurance Act regulate employee payment during maternity leave (UIF). An application for the payment of maternity benefits needs to be made by the expecting employee, and she will need to ensure that all forms are submitted to the Department of Labour. This application will be made up of forms completed by the employee’s bank, medical practitioner, and employer. There is no obligation on the employer to pay employees during this time.

In some instances, the employer may have their own maternity leave policy in place. This policy may not contain any less favourable provision than that already contained in the provisions of the Basic Conditions of Employment Act.

The BCEA further states that no employer may permit any pregnant or breastfeeding employee to perform any task that may be hazardous to herself or her nursing or unborn baby. Thus, placing a duty on the employer to evaluate the possible risks or hazards within the workplace.

It is also important that employers note sections 25A, 25B and 25C of the BCEA (Government Gazette no 43026 of 17 February 2020). These sections deal with parental leave, adoptive leave, and surrogate agreements where certain leave entitlements will also be applicable, and this provision is no longer solely for pregnant employees.

Article by: Carlene van der Lith
Dispute Resolution Official – Kimberley