My domestic worker is pregnant, what now?

by Mariёtte Redelinghuys

When an employee falls pregnant it can have a considerable impact on the profitability and survival of a business. Depending on the employee’s duties and responsibilities the impact could be slight, moderate or huge.

Labour legislation is strict with regards to how pregnancy in the workplace should be handled and it is therefore in the interest of the employer to be proactive. To prevent issues in this regard employers are advised to establish policies and procedures to ensure that fixed quality standards are maintained during pregnancy as well as the maternity leave period.

The Employee’s responsibility:

A female employee is entitled to four consecutive months of 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 is not allowed to 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 of maternity leave.

It is 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 damaging conditions exist in the workplace that may have a negative influence on the employee’s health.

It is 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?

Sectoral Determination 1 regulates labour relations in the Contract Cleaning Sector and 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.

Be proactive:

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 the contract of a female employee that regulates maternity leave to prevent any uncertainty and disputes.

Please contact the LWO at 0861 101 828 | info@lwo.co.za | www.lwo.co.za for more information and/or advice in this regard. We are available 24/7.