Maternity leave is something that all working mothers (and their baby-making partners!) should know all about. The law is black and white in this area and yet so many employers try to wiggle around in search of a grey patch.
As part of an exciting ongoing series here on Millennial Momma, Optimum Law’s Sheldon Roothman is on a mission to educate his fellow parents to make sure that nobody finds themselves on the wrong side of the law — and equip them with the knowledge they’ll need if they do.
In today’s post, Sheldon will be discussing all things maternity leave. Buckle up!
Maternity Leave Matters: Everything You Need to Know about Maternity Leave in South Africa
Expecting a new little bundle of joy is an exciting time, but this happiness may be dampened if you depend heavily on the income that you bring home from your place of employment.
You’re likely wondering how much paid maternity leave you’re entitled to, whether or not your employer may replace you upon hearing about your pregnancy, or whether you’re eligible to apply for benefits through the UIF.
Fear not – we’ve got all the answers to your questions below.
How Much Maternity Leave Am I Entitled To?
The employee is entitled to 4 months of unpaid maternity leave. Maternity leave should commence one month before the expected date of birth of the baby, or earlier if your doctor believes that you are no longer fit to work.
The employee is obliged to give the employer one month’s notice of the commencement of maternity leave. Employers are not obliged to remunerate employees for maternity leave, and the employee must claim maternity benefits through the Department of Labour.
There is no provision in the Labour legislation stipulating at what stage the employee must inform the employer that she is pregnant, except for the requirement that the employee is obliged to give the employer one month’s notice of the commencement of maternity leave.
All female employees are entitled to 4 months of maternity leave. The employer is obliged to hold the employee’s job open for her to return from a period of maternity leave.
You may choose to take less maternity leave than the 4 months that are granted to you by law; however, you are required to take a minimum of 6 weeks of maternity leave after the birth of your baby. Therefore, the earliest you can return to work is after 6 weeks.
Is My Employer Obliged to Pay Me My Salary When on Maternity Leave?
No, your employer does not have to pay you anything while you are away on maternity leave.
Having said that, many employers do go the extra mile and pay a portion of your salary. Some may even pay your full salary. It all depends on the employer and their internal policies.
What if My Employer Fires Me After Announcing My Pregnancy or while I’m on Maternity Leave?
This is against the law. An employer may not terminate your employment because you are pregnant or while you are on maternity leave.
This may amount to an automatically unfair dismissal entitling you to 24 months’ compensation if successful at the CCMA.
Can I Claim from the UIF?
You can claim from the Maternity Benefit Fund of the UIF if you have been contributing to the Unemployment Insurance Fund (UIF) for at least 6 months.
For every 6 months that you have been contributing to the UIF, you will receive 1 month of paid maternity leave. However, it is important to note that the UIF will not pay out your full salary. The percentage you will get depends on how much you earn.
The more you earn, the lower the percentage will be. Most women can expect to receive anything between 38 – 60% of their typical earnings.
Do I Still Accrue Annual Leave Whilst on Maternity Leave?
I am often asked whether an employee on maternity leave continues to accrue annual leave during a period of maternity leave. There does not seem to be a clear answer, since different interpretations have been made by different people on this question.
Looking firstly at annual leave, The Basic Conditions of Employment Act, section 20 states that a leave cycle is a period of 12 months with the same employer immediately following the commencement of employment.
It states further that in every such period of 12 months (leave cycle); the employee is entitled to a period of 21 consecutive days leave on full pay. This, as we all know, equates to 15 working days.
This provision for the annual leave entitlement in section 20 (1) and (2) does not make any exclusions to the entitlement. In other words, no employee is excluded from this entitlement and certainly it makes no exclusion based on maternity leave.
This then would imply that the leave cycle of 12 months continues to accrue annual leave, irrespective of whether that 12-month leave cycle is interrupted by maternity leave or not.
What this means is the fact that the employee may be on maternity leave – which is in fact unpaid leave – does not actually alter the status of the employee. Put differently, the employee on maternity leave continues to remain an employee of the employer – albeit that the employee is on unpaid leave.
In section 20 (2) (b), it is stated that by agreement annual leave may accrue at the rate of 1 day for every 17 days on which the employee worked or was entitled to be paid.
Some employers have interpreted this to mean that, since the employee is on maternity leave, which is unpaid leave, the employee is then neither working nor is entitled to be paid – hence no annual leave accrues while on maternity leave.
This, however, would be true only if the employer and the employee had reached a written agreement that section 20 (2) (b) would be the agreed basis for accrual of annual leave in that particular employment contract.
In addition, it would seem to me to be unfair discrimination (based on pregnancy) to exclude an employee from accruing annual leave whilst on maternity leave. It would in fact be discrimination based solely on reasons related to pregnancy, and as such in my view would be unfair discrimination.
So, there you have it. If you have any queries regarding maternity leave, do not hesitate to get in touch with us at firstname.lastname@example.org or Sheldon on 072 774 9178.
That’s A Wrap
Ultimately, it is your responsibility to be informed on how the law impacts your status as both a parent and an employee. Easy peasy stuff, right?
As someone who has been treated unfairly by employers in the past, this topic is one that is very close to my heart.
I hope that my collaboration with Sheldon will help some of you avoid making the same mistakes I did.
Until next week, friends.