Article provided by SEESA
Have you ever wondered what your responsibility is as an employer when it comes to pregnant employees?
We all know that Section 26(1) of the Basic Conditions of Employment Act 75 of 1997 (hereafter referred to as “BCEA”)1 states that “no employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child”. The BCEA does not provide detail as to what would be hazardous to the employees’ health or her child’s health. Most employers thus assume it refers to dangerous chemicals, lifting of heavy objects, exposure to radiation, sitting or standing for long periods of time, etc. The usual things. But there is more hazard than realised.
Not every employer is aware that South African Labour Law has created the Code of Good Practice on the protection of employees during pregnancy and after the birth of a child (hereafter referred to as “the Code”). The Code provides guidelines for employers and employees regarding the protection of women health during pregnancy and afterwards, in their working environment. This has been created in accordance with Section 87(1)(b) of the BCEA. The Code was gazetted in 1998 and is still in place today.(2)
Section 7 of the Code provides common aspects of pregnancy that may affect the employee’s work that employers and employees should be aware of. They are:
- Exposure to nauseating smells may aggravate morning sickness;
- Backache and varicose veins may result from work involving prolonged standing or sitting. Backache may also result from work involving manual handling;
- More frequent visits to the toilet will require reasonable access to toilet facilities and consideration of the employee’s position if leaving the work she performs unattended poses difficulties;
- The employee’s increasing size and discomfort may require changes of protective clothing to work in confined spaces and changes to her work where manual handling is involved. Her increasing size may also impair skill, agility, coordination, speed of movement and reach;
- The employee’s balance may be affected, making work on slippery or wet surfaces difficult;
- Tiredness associated with pregnancy may affect the employee’s ability to work overtime and to perform evening work.The employer may have to consider granting rest periods.”
Because of the above-listed aspects, Section 26(2) of the BCEA places an onus on the employer to offer the employee suitable alternative employment during the pregnancy and for six months after the child’s birth. This alternative employment must be on terms and conditions that are not less favourable than the employee’s ordinary terms and conditions of employment.
After the birth of the child, for the first six months after birth, the employer should arrange for employees to be able to attend postnatal clinic/doctor visits as required.(3) Further arrangements must be made for breastfeeding employees to have two 30 minute breaks per day to feed their child or express milk.(4)
In conclusion, if an employer has a staff member that is currently pregnant, they must ensure to follow the Code.
Should you require more information or assistance regarding the rights of pregnant employees in the workplace, don’t hesitate to get in touch with your SEESA Labour legal advisor. Alternatively, “SMS” the word “SEESA” to 45776 and we will contact you.
About the author
Yolande Iversen started her journey at SEESA in 2011 and is currently a Labour and Consumer Protection & POPI Legal Advisor. She obtained her LLB Law Degree at the Nelson Mandela Metropolitan University.
(1) As amended by The Basic Conditions of Employment Amendment Act, Act 7 of 2018;
(2) Government Gazette Vol. 401, No.19453, 13 November 1998 (Government Gazette No 6342);
(3) Section 5.12 of the Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child;
(4) Section 5.13 of the Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of the Child.