What is the Law on Maternity Leave?
Childbirth is often considered to be one of life’s greatest miracles. The joy felt when bringing a new person into the world is rarely outdone by any other special moment, and mothers tend to think back on the event with fond memories. Unfortunately, though, pregnancy is not one of the quickest things in life, and mothers usually need to spend a lot of time resting before and after birth while they get things prepared and bond with their new child. Additionally, a lot of expectant mothers have jobs that they need to keep if they want to continue providing for their growing families. These two facts are put together to raise a couple of interesting questions. For example, how does maternity leave work in South Africa? Is it paid or unpaid? And who is allowed to take it? What is the Law on Maternity Leave?
According to Sections 25 and 26 of the Basic Conditions of Employment Act, pregnant employees are allowed up to 4 months of consecutive unpaid maternity leave.
This leave usually begins 1 month before the expected birth date of the child and mothers are expected to give 1 month’s notice to their employers prior to the beginning of their maternity leave.
Additionally, pregnant employees who have a miscarriage during their 3rd trimester or bear a stillborn child are still entitled to 6 weeks of maternity leave following the event, regardless of whether or not they had begun their maternity leave at the time.
Does South Africa Have Paid Maternity Leave?
South Africa does not have statutory paid maternity leave, however, if the individual has been contributing to the Unemployment Insurance Fund (UIF), they will be able to make a claim with the fund to secure a portion of their income.
How Long is Paid Maternity Leave in South Africa?
As mentioned, pregnant employees are entitled to 4 consecutive months of maternity leave during which time they may make claims with the UIF.
Pregnant employees may not return to work for at least 6 weeks after the birth of the child unless they have received certification from a doctor or midwife verifying that they are fit enough to do so.
How Much is UIF Maternity Pay in South Africa?
If you have been paying into the UIF, and have qualified for the Maternity Benefits Fund, you will be able to receive a certain percentage of your income (usually between 38-60%) for a maximum length of 121 days. Generally speaking, the more money you earn, the lower the percentage will be and vice versa.
If you have experienced a miscarriage in the third trimester or stillbirth, you may still be entitled to maternity benefits for 6 weeks.
Can I Claim from the UIF if my Employers Pay a Portion of my Salary?
It should be noted, however, that this system only allows you to make up the difference that you are losing out on during your maternity leave. In other words, if your employer is paying 80% of your normal salary to you during your maternity leave, you will only be able to make a claim with the UIF for the remaining 20% of your salary, ie, you will not be able to exceed your standard salary via UIF claims.
Who Qualifies for Maternity Leave in South Africa?
- Employees qualify for 4 consecutive months of maternity leave when pregnant and may begin this leave at any point from four weeks before the expected birth of the child unless otherwise agreed.
- That said, maternity leave may also begin from any point at which a medical practitioner or midwife certifies that it is necessary for the health of the pregnant employee or the unborn child.
- Pregnant employees who suffer a miscarriage in the third trimester or a stillbirth also qualify for 6 weeks of maternity leave following the event.
Can a Father Take Maternity Leave?
While a father cannot take maternity leave, he is entitled to 10 consecutive days of parental leave when the child is born. This leave is also available to one of the parents of an adopted child who is below 2 years of age, however, it is separate from adoption leave.
Much like maternity leave, this time off work is unpaid, but claims can still be made with the UIF for some recompense, providing that the individual in question has been contributing to the UIF.
How Long Does it Take to Receive Maternity Payment from the UIF?
The average wait time for UIF payments during maternity leave is around 3-6 weeks. It is also worth mentioning that proof will need to be sent in on a monthly basis to verify that you are indeed still on maternity leave.
Are Maternity Benefits from the UIF Taxed?
No, they are not.
Can I be Fired Due to My Pregnancy?
No, you cannot.
According to the Labour Relations Act 66 of 1995, if an employee is fired and the reason given is –
- Their pregnancy
- Intended pregnancy
- Or any reason related to their pregnancy
The action will be considered to be an ‘automatically unfair dismissal’ and the pregnant employee will be able to approach the CCMA for recourse.
How Does Adoption Leave Work?
As mentioned, the parent of an adopted child who is below the age of 2 may take adoption leave from the day the adoption order is granted or from the day on which the child is placed in the care of the parent by a court pending the finalisation of the adoption order.
If the child is being adopted by two parents, only one of them may take adoption leave while the other takes parental leave.
Adoption leave entitles a person to 10 consecutive weeks of unpaid leave and, once again, the individual will need to qualify and apply for UIF payments if they wish to receive compensation during this period.
In Conclusion – How does Maternity Leave Work in South Africa?
Pregnant employees in South Africa are entitled to 4 months’ consecutive maternity leave, however, this leave is unpaid and individuals will need to make a claim with the UIF if they wish to receive payment during this period. What is the Law on Maternity Leave?
Maternity leave usually begins one month before the expected birth of the child and employees should give their employers 1 month’s notice before this date. Maternity leave can begin earlier if a medical practitioner or midwife determines that it is necessary for the health of the mother and/or unborn child. Pregnant employees who suffer a miscarriage in the third trimester or stillbirth are still entitled to 6 weeks of unpaid maternity leave, whether or not they had begun their maternity leave at the time.
As mentioned, individuals who wish to receive income during their maternity leave will need to make a UIF claim. This outlet is only available if you were already contributing to the UIF. The exact amount of money that you will receive from the UIF will differ depending on your average monthly income, but it will usually stay somewhere between 38-60%.
You may only make a UIF maternity leave claim when you are receiving less than your full salary from your employer. Additionally, the UIF claim can only help to make up the difference and may not exceed your original salary. In other words, if your employer is paying you 80% of your usual salary during your maternity leave, you may make a UIF claim, but the amount you receive will not exceed the remaining 20% of your salary.
Fathers cannot apply for maternity leave but they may apply for parental leave. This leave entitles a parent to 10 consecutive days of unpaid leave when the child is born, but, once again, UIF claims may be made during this time.
The adoptive parent of a child who is below the age of 2 may also apply for adoption leave which entitles them to 10 consecutive weeks of unpaid leave. Once again, a UIF claim can be made during this period, however, only one parent may take adoption leave. In cases which involve two adoptive parents, the other parent can only apply for parental leave.
UIF maternity leave payments are not taxed and usually take between 3-6 weeks to arrive. Individuals will need to prove that they are still on maternity leave every month if they wish to receive UIF payments.
Pregnant employees may not be fired for going on maternity leave and any such action will be classified as an ‘automatically unfair dismissal’. Pregnant employees who believe that they have been discriminated against due to their pregnancy may approach the CCMA for assistance.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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