Deon de Jager
I recently received an interesting enquiry. “I recently gave birth to a baby. Unfortunately it was a stillbirth. Am I entitled to any maternity leave?”
For many people this question has to do with an unusual situation, but it occurs regularly and is often handled wrong because of ignorance of the law. The relevant law here is the Basic Conditions of Employment Act. This act, together with the Constitution of South Africa, aims at protecting the rights of pregnant women in the workplace.
Section 25 of the Basic Conditions of Employment Act stipulates as follows:
First of all this section stipulates that an employee is entitled to four consecutive months’ maternity leave. An employee may go on maternity leave at any time within four weeks before the expected date of birth, or on a date certified by a medical practitioner or midwife as essential to the health of the employee or unborn baby. This section further stipulates that no employee may work for six weeks after the birth of her child. Once more the exception is that if a medical practitioner or midwife certifies that the employee is fit to return to work, she may return earlier.
Regarding the notice of intention to go on maternity leave, this section stipulates that the notice must be in writing and must be given at least four weeks before the start of the maternity leave or whenever it is reasonably possible. In this notice the employee must indicate when she intends going on maternity leave and when she plans returning to work.
The section further stipulates that should an employee miscarry or give birth to a stillborn baby, she is entitled to six weeks’ maternity leave. This maternity leave starts on the day of the miscarriage or stillbirth. The employer may therefore not deduct from her annual leave the period before the miscarriage or stillbirth (which is less than four weeks) during which the mother was on maternity leave.
An employee is therefore entitled to six weeks’ maternity leave after a stillbirth. Any maternity leave taken before the stillbirth is still regarded as maternity leave and is additional to the six weeks after the stillbirth.
This distinction may appear unimportant, but it is important that an employer should classify this leave as maternity leave and not as sick leave. The employee’s sick leave, which stretches over a period of three years, is not affected by this.
Every pregnant employee should therefore remember the following:
- You are entitled to four months’ maternity leave.
- Maternity leave may be taken at any stage within four weeks before the expected date of birth.
- You may not return to work within six weeks after the date of birth.
- Notice of the intention to go on maternity leave must be given at least four weeks before the time and must indicate the exact length of the maternity leave.
- Should you miscarry during the last trimester or the baby be stillborn, you are entitled to maternity leave afterwards.
Should you have any further questions about maternity, sick or annual leave, you can join Solidarity and be advised by our experts.
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