We all know how difficult being a parent — or even preparing to become one — can be.
In between deciding whether to give natural birth or have a C-section, sending your little one to creche versus hiring a nanny, or even getting caught up in the never-ending battle of the baby brands, you also have to navigate the muddy waters of being a working parent.
Even though it should be simple, it rarely is. Employers can often consider pregnancy and parenting to be at best an inconvenience and at worse a threat to their business. Sometimes those employers act in a way that is — on top of being hella rude — unlawful.
I teamed up with daddy and labour lawyer Sheldon Roothman, from Optimum Labour Law, to fill you in on the 5 labour laws every South African parent should know.
Before jumping into a quick Q&A session, today we’ll be discussing:
- How much maternity leave you can take
- When to come back from maternity leave
- Your rights to breast-pump or express milk in the workplace
- Dad’s right to paternity leave
- What family responsibility leave really means
Are you ready to be informed? Let’s put on our learning pants.
1. You’re Legally Allowed Four Months Maternity Leave
That’s right! The employee (that’s you) is entitled to four months unpaid maternity leave. This maternity leave should begin one month before the expected date of birth of the child and the employee is obliged to give the employer (that’s your boss) one month’s notice of when the maternity leave will be starting.
Employers aren’t obliged to remunerate employees for maternity leave. The employee must claim maternity benefits through the Department of Labour. What this means is that — in the eyes of the law — your boss doesn’t have to pay you a salary while you’re off creating and shaping human life BUT you don’t have to be income-less as you can claim through the D.O.L.
2. … And You’re NOT Allowed Back At Work Within 6 Weeks of Giving Birth
You can take your maternity leave anytime from four weeks before your baby’s due date. You may NOT return to work within six weeks of the delivery date. Of course, our budgets don’t always allow for this and, as Sheldon says, if you are considering going back to work in less than four months, always remember that this is time with your baby that you cannot get back.
At the time of Arabella’s birth, I was a commission-only earner and could not afford to take a full six weeks away from work. I only took four weeks of maternity leave and if I could turn back the clock I would. Those two weeks that I “lost out on” hang over my head to this day. #momguiltftw
3. In The Eyes of The Law, Breast-Pumping is Permitted
If you’ve been here before, you’ll know that breast-pumping in the workplace is tough. But it’s also your constitutional right. According to the Basic Conditions of Employment Act (BCEA) all breastfeeding mothers who have babies aged under six months are permitted two 30-minute pumping breaks every working day.
South Africa’s Code of Good Practice on the Protection of Employees during Pregnancy and After the Birth of a Child secures guaranteed breastfeeding breaks of 30 minutes twice per day for breastfeeding or milk expression each working day for the first 6 months of the child’s life.
This code is issued in terms of section 87(1)(b) of the Basic Conditions of Employment Act (BCEA) 75 of 1997. The Code is intended to guide all employers and employees concerning the application of section 26(1) of the BCEA which prohibits employers from requiring or permitting pregnant or breastfeeding employees to perform work that is hazardous to the health of the employee of that of her child.
It is also good practice for employers to provide breastfeeding or breast-pumping mothers with a safe, suitable, and sanitary place for them to pump. Ideally, this space should be a small room located near a source of running water that is private with a lockable door and sufficient lighting, a comfortable chair, a waste bin, and an outlet for mothers in case they’re using electric breast-pumps.
I went on to ask Sheldon if the Code of Good Practice mentioned is an actual law or merely a recommendation for employers to follow. Sheldon responded with :
“The code of good practice is a guideline issued to supplement the BCEA and is suggested and should be followed by the employer as a rule. The employer’s actions can be judged against the requirements in the code. A code of practice is a set of written rules which explains how people working in a particular profession should behave.”
I also asked him what the repercussions of NOT abiding by these guidelines could be and he said the following:
“The CCMA may have jurisdiction if the dispute amounts to an unfair labour practice or if the issue results in dismissal or constructive dismissal. Generally though a complaint must be made with the department of labour and a compliance order can be made to compel the employer to comply with the law.“
Sheldon has sourced this downloadable PDF guide to breastfeeding in the workplace. I highly recommend all employees and employers familiarise themselves with this guide.
4. Fathers Are FINALLY Eligible for 10 Days of Paternity Leave
On 18 December 2019, President Ramaphosa announced an effective date of 1 January 2020 for sections 1 to 7 of the Labour Laws Amendment Act of 2018. In terms of this Act, an employee is entitled to 10 days parental leave upon the birth of the employee’s child.
How’s that for an early Christmas present!
This highly anticipated announcement means that in particular:
- An employee who is a parent of a child is entitled to at least 10 consecutive days’ parental leave;
- Adoption leave entitles an employee, who is an adoptive parent of a child who is below the age of two, to adoption leave of at least 10 consecutive weeks or the parental leave referred to above; and
- An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to commissioning parental leave of at least 10 consecutive weeks, or the parental leave referred to above.
5. It’s Your Right To Be With Your Child When They’re Sick, Thanks to Family Responsibility Leave
Family Responsibility Leave used to be this mysterious and murky area. “My child had a nightmare, so I’m taking family responsibility leave” and “It’s my child’s first day of school, so I’m taking family responsibility leave” are both sentences I’ve heard in my life.
The confusion has officially been cleared as now specific requirements must be met in order for family responsibility leave to be taken.
These specific requirements, as mentioned in paragraph 27(2), cover instances — and ONLY these instances — where:
- The employee’s child is born
- The employee’s child or adopted child is sick
- The death of the employee’s spouse or life partner, parent, adopted parent, grandparent, grandchild, or sibling.
Sheldon wants us to note that the employee only qualifies for family responsibility leave in case of illness if it is the employee’s child or adopted child that is sick. No other incident of illness is covered under the section. This means that the illness of an employee’s spouse or life partner, parent, grandparent, sibling, cousin, brother-in-law, mother-in-law, or anybody else OTHER than the employee’s child is not covered and annual leave must be used.
Similarly, the occasion of the death of a person only qualifies for family responsibility leave if the death is one of the persons named in the bullet point list above. The death of any other relative is not covered by family responsibility leave and those occasions must be treated as annual leave.
Labour Laws Q&A Session
Now that we have a clearer idea of what these labour laws mean for parents in South Africa, let’s dive into the nitty gritty of what some of these laws mean and learn a little more.
I asked Sheldon a bunch of questions in the hopes of understanding what it means to be a parent AND a member of the workforce.
Here’s what he had to say.
Q: Do you feel as though parents are sufficiently informed when it comes to the labour laws surrounding returning to the workplace after a child is born?
A: The general public needs a thorough understanding of the BCEA and LRA and accordingly there are many misconceptions regarding employee rights. I don’t feel parents are sufficiently informed and they should approach their HR Manager or Line Manager for guidance. Employers should also ensure that summaries of the BCEA, LRA and Codes of conduct are visible and available in the workplace.
Q: We now know that, up until their babies are 6 months old, breastfeeding moms are entitled to two 30 minutes breaks per day. Are employers legally required to provide breast pumping mothers a safe space to pump?
A: It is also good practice for employers to provide breastfeeding or breast-pumping mothers with a safe, suitable, and sanitary place for them to pump and I submit this to be a legal requirement and they must do so.
Q:What are the differences, if any, between parental leave and family responsibility leave?
A: Paternity leave may only be taken on birth or adoption of a child and cases involving surrogacy and is normally granted to the father. Ladies are entitled to 4 months maternity leave as above. Family responsibility leave may only be taken in specific instances (birth/illness and death) as outlined above and in respect of specified people. All other leave must be taken as annual leave. It depends on the circumstances of the birth of a child and the nature of the relationship with the child to determine what is applicable.
Q: Are the labour laws discussed in this post applicable to biological parents only, or do they apply to step, foster, and adoptive parents too?
A: The above laws are equally applicable to adoptive parents but, allegedly, not to foster parents. Parental leave may also be applicable in circumstances where an employee legally adopts a child or when a child is placed — by a court — in the care of a prospective adoptive parent. In this regard one must consider the definitions of adoptive and prospective adoptive parents.
A “prospective adoptive parent” means a person that complies with the requirements set out in the Children’s Act of 2005. A prospective adoptive parent therefore means a person that is:
- Fit and proper to be entrusted with full parental responsibilities;
- Willing and able to undertake, exercise, and maintain those responsibilities;
- Older than 18 years;
- Properly assessed by an adoption social worker.
Q: Of all the labour laws discussed today, which one do you think parents NEED to know? Which one, in your experience, causes the most confusion or complications?
A: No one law takes precedence. The various leave provisions (sick, annual, family responsibility, and paternity) as contained in the BCEA and the Code should be consulted to get an overall idea of what time of leave applies and when.
That’s A Wrap
Do you have any questions about the labour laws you read about today? Or are you concerned that your rights are being violated by your employer? If so, I encourage you to reach out to Sheldon who would love to help you.
You don’t need to worry about filling in an online contact form and never receiving a response when Sheldon is involved. He prefers to communicate with his clients and those who’d like his help via his responsive Facebook Page. Alternatively, you can give Sheldon a call on 0727749178 or pop him an email on firstname.lastname@example.org or find the answers to your questions.
I hope that you found value in today’s post and that you feel a little bit more empowered in your title of “parent”, I know I do.
Till next Wednesday, folks!