Maternity leave and pregnancy: Instalment 2

Instalment 2: What are a pregnant employee’s legal obligations in declaring her pregnancy when a) applying for a job and b) telling her employer that she is pregnant?

Some of the most frequently asked questions we encounter in practice revolve around the rights and protections afforded to pregnant employees. Due to the frequency of these questions, we have decided to set out in this series of articles some of the more frequently asked questions about maternity leave and pregnancy and our answers thereto.

In applying for a job, the candidate, as an applicant for employment, is protected in terms of the Employment Equity Act against discrimination on the grounds of pregnancy. For the purposes of the Employment Equity Act, applicants for employment are classified under the definition of “employee” and would be able to lodge a dispute as if they were employees.
In terms of the Basic Condition of Employment Act, employees must notify their employers at least four weeks before the employee intends to commence maternity leave. The notice must be given in regard to what date the employee intends to commence maternity leave and the date on which she intends to return from maternity leave.
Although the Basic Condition of Employment Act only requires that notice be given to the employer four weeks prior to the intended commencement of maternity leave, employees should bear in mind that the employer should be notified earlier in the best interests of the employee in order to be able to identify risks and hazards, as well as to best deal with emergency situations or sudden critical illness or injury while at work.
If an employee is working in a hazardous environment that may be harmful to the employee or her unborn baby, the employee should inform her employer as soon as she becomes aware that she is pregnant, so that measures can be taken to protect the employee and her unborn baby from any harm that may be caused as a result of the employee’s working environment. Should the employee not be at risk in terms of a hazardous work environment, or harmful substances, as a result of her employment, the employee should inform her employer of her pregnancy as soon as her medical practitioner advises her that it is safe to do so. In doing this, the employee allows the employer to make arrangements for her maternity leave in terms of the reallocation or redistribution of the employee’s work, and more importantly to be able to respond appropriately in the case of an emergency or sudden critical illness. The employee must bear in mind that she must, in the very least, give notification to the employer at least four weeks prior to the commencement of maternity leave, of the date of the intended start of maternity leave as well as the employees intended date of return to work.

Should you require any advice on these matters, please feel free to contact Marc Humphries on [email protected] or Candy Eaton on [email protected].

Candice Eaton

Head of HR and Labour Consulting, Johannesburg

Marc Humphries

Legal Advisor, Johannesburg