August 31, 2020

The COVID-19 virus and the National State of Disaster has a big impact on employees and the workplace. When South Africa moved to Alert Level 3 of the Lockdown, a large part of the economy reopened and saw employees starting to return to work. This posed some challenges for pregnant employees as they have been identified as vulnerable employees, especially if they are 28 weeks pregnant and have an existing underlying condition. It is a confusing time and pregnant employees might be concerned about returning to work. This article will empower pregnant employees through knowing what their rights are when returning to work.

How does the law protect pregnant employees when returning to work?

The Occupational Health and Safety Act requires an employer to provide a safe working environment for their employees without risking their health. To ensure that the health of employees at the workplace during Alert Level 3 of the Lockdown, regulations and guidelines have been published to mitigate the risk of COVID-19 in the workplace in respect of vulnerable employees. 

Before allowing pregnant employees to return to work, an employer must consider whether that employee can work from home, provided that the necessary equipment, internet access and other measures are available.

However, not every pregnant employee's work is of such a nature that allows her to work from home. If working from home is not possible, an employer may consider the below alternative options after consulting with the pregnant employee:

>     Provide temporary workplace accommodation to prevent the risk of infection. However, an employer may not reduce any of the employee's benefits if s/he provides this accommodation.

 >    Restrict certain duties to ensure that pregnant employees are not performing high risk procedures.

>     Provide protective isolation, for example, a clean and separate office.

>     Provide Personal Protective Equipment appropriate to the relevant work done by the pregnant employee.

>     Stricter social distancing protocols.

>     Limit duration of close interaction with clients or members of the public, which can also include to be provided with alternative transport arrangements for pregnant employees that use of public transport (where possible).

Pregnant employees may refuse to work if they do not feel safe at work, provided that such a refusal is justifiable if the pregnant employee feels that there is an imminent and serious risk of being exposed to the COVID-19 virus. The pregnant employee must notify her employer or health and safety representative as soon as possible about her refusal to work and the reasons for not working, in order to allow the employer to try and resolve the issue. An employer may not make any deduction from the pregnant employee's salary due to this type of refusal to work.

Will pregnant employees still be allowed maternity leave during the National State of Disaster?

Maternity leave is a type of leave that is specifically provided for pregnant employees in terms of the Basic Conditions of Employment Act and can be taken during Lockdown. The following important aspects of maternity leave are provided for in law:

>     An employee is entitled to at least four consecutive month's maternity leave, which may start at any time from four weeks before her expected delivery date or a date indicated by her medical practitioner. She may not return to work for six weeks after the birth of her child, unless approved by her medical practitioner

>     There is no legal duty on an employer to pay an employee while she is on maternity leave. However, the employment contract or an internal policy may provide for full or part payment of the employee's salary while on maternity leave.

>     Women on maternity leave may claim maternity benefits from the Unemployment Insurance Fund (“UIF”) if she was contributing towards the UIF. There are specific calculations that will be applied by the UIF to establish the actual amount of maternity benefits, however, it can be 38% to 58% of the employee's salary. Did you know…Pregnancy is one of the grounds in the Constitution and the Employment Equity Act that is specifically protected from unfair discrimination.