Navigating the Legal Framework of Maternity Leave: A Guide for Employers & Employees

Maternity leave occupies a key position in the dynamic world of labour relations, embodying statutory requirements and moral obligations. Ensuring the protection of pregnant women’s rights and well-being in the workplace, maternity leave in South Africa is a fundamental pillar of employment regulations. 

Legal Framework:

Maternity leave in South Africa is governed by Sections 25 & 26 of The Basic Conditions of Employment Act (BCEA) and Sections 186 & 187 of the Labour Relations Act (LRA). This legislative provision is designed to offer pregnant employees financial stability and job security throughout the critical period before and after giving birth.

Eligibility and duration:

Section 25 of the BCEA states that an employee is entitled to four consecutive months’ unpaid maternity leave. An employee may commence maternity leave at any time from four weeks before the expected date of birth or on a date from which a medical practitioner or midwife deems necessary. 

Employees may only work for six weeks after the birth of their child if a medical practitioner or midwife certifies that she is fit to do so. Should an employee experience a miscarriage during her third trimester of pregnancy or have a stillborn child, the employee is entitled to 6 weeks of maternity leave, regardless of whether she has already started her maternity leave.

Regarding the BCEA, the employee can apply for maternity benefits from the Unemployment Insurance Fund (UIF) for a portion of their average salary/wage.

Please note that some Bargaining Council (Collective Agreement) might have already negotiated these minimum requirements to something more favourable – such as a more extended period of leave and/or payment of a particular portion or, in some instances, payment of the whole amount during the period. 

An employee must notify an employer in writing (unless they are illiterate) on the date the employee intends to commence maternity leave and her return date. The notice must, however, be given at least four weeks before the employee plans to start maternity leave. 

Whether the employee is on paid/unpaid maternity leave, their annual leave continues to accrue.  Other benefits, such as medical aid or pension/provident fund contributions, depend on the company policy or what was agreed between the parties before leave commenced. 

Most employers generally cover the cost of the same and deduct these amounts once the employee returns to work. 

When an employee returns from maternity leave, the company is required to keep her position open.

Employee’s responsibility:

An employee must notify her employer in writing of her maternity leave’s start and return date. This must be done at least four weeks before the intended start date of maternity.

Employer Responsibility:

Employees may ask the manager or supervisor for a room to express milk or breastfeed when they return to work after maternity leave. Employees should be permitted to take two 30-minute breaks each day to breastfeed or express milk, as required by the Code of Good Practice to protect employees during pregnancy and after childbirth. 

Every working day for the first six months of the child’s existence should be set aside for this. It is unsafe and unsanitary to express milk near a toilet, so employers should try and provide a place where the employee can express milk or breastfeed that is clean and private.

Section 26 of the BCEA prohibits the employer to require or allow a pregnant employee or an employee breastfeeding her child to engage in work that endangers her well-being or that of her child.

During an employee’s pregnancy and for six months following her child’s birth, the employer must offer her suitable alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment if –

  • The employee is required to perform night work, as defined in section 17 (1) of the BCEA, or her work poses a danger to her health or safety or that of her child and
  • it is practicable for the employer to do so.  

The employer is not responsible for the employee’s salary while on maternity leave; the employee must apply for UIF under code 9.

The subject of maternity leave is complicated for businesses in South Africa. It offers prospects for staff retention, favourable company branding, and legal compliance, even though it poses operational difficulties and potential financial burdens. 

Businesses may negotiate these obstacles by introducing flexible rules, supportive workplace cultures, and careful personnel planning that achieves a balance between upholding employee rights and ensuring business continuity. By doing this, they may promote a more diverse and sustainable workplace and fulfil their legal requirements.

If you would like to learn more about how to implement a Maternity Leave structure properly within your organisation, please don’t hesitate to contact us.