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  Legalwise Wiseup  
     
  June 2016  
     
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Maternity leave and what the law says
Tuli is 4 months pregnant with her first child. She has been working for her employer for 18 months. She heard that an employee is entitled to maternity leave, but she is not sure how the procedure works. This article explains how the procedure works.

For how long may an employee take maternity leave?

  • Labour law provides that a pregnant woman is entitled to at least 4 months of maternity leave. The employer and employee may agree to more than 4 months of maternity leave.
  • Maternity leave may start at any time from 4 weeks before her expected delivery date (birth) or a date indicated by her medical practitioner necessary for her health or the health of her child.
  • An employee may not return to work for 6 weeks after the birth of her child, unless approved by her medical practitioner.
  • An employee who had a miscarriage during the 3rd trimester of her pregnancy or had a stillbirth is entitled to maternity leave for 6 weeks after the miscarriage or stillbirth.

Is an employee entitled to be paid her salary during maternity leave?

  • Labour law does not entitle an employee to be paid her salary while on maternity leave.
  • An employer may, however, have an internal policy regulating maternity leave and the payment of maternity leave benefits (“maternity policy”). For example, a maternity policy may set out the following:
    • whether an employee will receive maternity leave benefits while on maternity leave, for example, full or part payment of her salary and/or other benefits;
    • the period that she is required to work before she will qualify for maternity leave benefits, for example, usually an employer requires an employee to work continuously for more than one year; or
    • the period of maternity leave she is entitled to for example, 6 months (it may not be less than 4 months).
  • If an employer does not have such a maternity policy in place providing an employee with maternity leave benefits, an employee will not be able to claim benefits from her employer.
  • An employee may claim maternity leave benefits (“UIF”) from the Unemployment Insurance Fund (“Fund”) if she has been contributing to the Fund. The Fund will pay maternity leave benefits for up to 17.32 weeks (4 months).

How to apply for maternity leave with an employer?

  • Obtain a copy of the employer's maternity policy.
  • Consult with the employer or the employer's Human Resources Department as soon as reasonably possible and inform him/her/it of the pregnancy. The following may be discussed:
    • requirements of the maternity policy;
    • estimated maternity leave dates (start and end dates);
    • salary;
    • payment of benefits or the suspension thereof; and
    • re-allocation of the employee's duties.
  • Submit a written application for maternity leave, indicating the start and end date of the maternity leave, at least 4 weeks before going on maternity leave.  A letter from the employee's medical practitioner may be required from the employer to support these maternity leave dates.

How to apply for maternity leave with the UIF?

  • Application for UIF should be made at least 8 weeks before the expected due date of the child's birth.
  • The employee must collect and complete the required forms from an office of the Department of Labour (“labour office”).
  • The completed forms must then be submitted to the labour office. The following documents must be submitted together with the completed forms:
    • copy of identity document;
    • copy of last 6 months payslips;
    • medical certificate;
    • certificate of service (if her employment was terminated);
    • proof of banking details.
  • The application will then be processed and a claims officer of the labour office will advise the employee of his/her decision in writing.
  • If the claim is approved, the employee will be given a percentage of her salary. The employee may receive between 38% – 60% of her salary depending on her level of income (low level income – bigger percentage or high level income – lower percentage that is limited to a certain amount).
  • If the application is rejected, the employee must be given reasons for the rejection.
  • The employee may be requested to submit a notification and declaration of birth to the labour office.

Can a male employee apply for maternity leave?

  • Labour law does not provide a male employee with an entitlement to maternity leave or maternity leave benefits. However, labour law does provide a male employee with an entitlement to 3 days family responsibility leave upon the birth of his child.
  • An employer may have an internal policy regulating leave and the payment of leave benefits to a male employee upon the birth of his child called a paternity leave policy. An employer may also have an internal policy regulating adoption leave and payment of adoption benefits.
  • Mia v State Information Technology Agency (Pty) Ltd had a very interesting outcome, the question before the Labour Court was whether a surrogacy parent can apply for maternity leave and maternity leave benefits in terms of an employer's maternity policy. The facts can be summarised as follow:
    • An employee, who is in a same sex marriage, applied for maternity leave and maternity leave benefits in terms of the employer's maternity policy.
    • The reason for his application was as a result of the fact that the employee and his partner entered into a surrogacy agreement and awaited the birth of their child.
    • The employer declined the employee's application for 4 months paid maternity leave, as only female employees could apply. But the employer granted the employee, in accordance with the employer's policy on adoption, 4 months adoption leave and two months paid leave.
    • The employee referred the dispute to the CCMA claiming unfair discrimination towards him and other surrogacy parents. This dispute was then escalated to the Labour Court.
    • The Labour Court held that the best interests of the child must be taken into account when determining whether a partner in a same sex marriage is entitled to maternity leave. The Labour Court further held that the employer's refusal to grant the employee maternity leave is an act of unfair discrimination.
    • The Labour Court concluded that the employer must grant the employee maternity leave in respect of his/her/its maternity policy.
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Letter from the Chief Executive Officer
Part-time, fixed term or permanent employee?
Maternity leave and what the law says
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