IVAN ISRAELSTAM: Laws and code protect pregnant employees against mistreatment

SA’s constitution gave birth to five pieces of legislation that support employees during and after pregnancy. These statutes, with a code governing the protections of pregnant workers, act to protect the employee and her child from the day she falls pregnant until well after the birth of the child.

The laws and code are: the Employment Equity Act, the Unemployment Insurance Act, the Basic Conditions of Employment Act, the Labour Relations Act and Code of Good Practice on the Protection of Employees During Pregnancy and after the Birth of a Child. 

The code, which was issued in terms of the Basic Conditions of Employment Act, is aimed at protecting pregnant and postpregnant employees, as well as the employee’s newborn child. It obliges employers to encourage women employees to inform their employer of their pregnancy as early as possible to ensure the employer can assess the risks and deal with it.

Employers should also evaluate the situation of each employee who has informed the employer that she is pregnant and assess risks to the health and safety of pregnant or breast-feeding employees within the workplace.

The code also enjoins employers to implement appropriate measures to protect pregnant or breast-feeding employees and to supply pregnant or breast-feeding employees with information and training regarding risks to their health and safety and measures for eliminating and minimising such risks.

It further reads that employers should maintain a list of jobs not involving risk to which pregnant or breast-feeding employees could be transferred.

Due to pregnancy the employee may be unable to perform her work to her normal level of standard. The reasons for this include that the debilitating effect of morning sickness can result either in the employee being unable to work early in the day, working at a slower pace or in making errors.

Work interrupted

The added weight of the baby and the strain of pregnancy can result in backache. This can be worsened by work requiring prolonged standing or sitting and involving manual handling. The distraction caused by backache can affect the quality of the employee’s work.

The pressure of the child on the employee’s bladder often results in the need for more frequent visits to the toilet. This can result in the employee’s work being interrupted and, at times, in its completion being delayed. It could cause inconvenience to her colleagues who may have to help to get the work done.

The code also points out that the employee’s increasing size, weight and discomfort may require changes of protective clothing and changes to the working space allocated to the employee. This may also impair her dexterity, speed of movement and reach.

Pregnancy can affect the employee’s balance particularly in the latter stages. Therefore, work requiring the employee to walk on slippery or wet surfaces or to use stairways can cause accidents and slow the employee down. Vibration, extreme temperatures, prolonged exposure to noise, radiation, stress, strenuous work and certain chemicals and gasses can be harmful to mother and child.

Due to the substantial legal protections of pregnant employees, employers cannot decide to avoid employing them or to replace them with more productive workers. Instead, employers need to use the services of labour law experts to devise and implement detailed strategies for ensuring the health and safety of working mothers and for minimising the effect of motherhood on workplace productivity without breaking the law.

• Israelstam is CEO of Labour Law Management Consulting.