In terms of Section 87(2) of the Basic Conditions of Employment Act, 1997, the Minister of Labour, after consulting NEDLAC, has issued under Section 87(1)(b) of that Act a Code of Good Practice on the Protection of Employees during Pregnancy and after the birth of a child. The Schedule (hereinafter referred to as “the code”) protects employees during pregnancy and after the birth of a child. It makes provision for breastfeeding or lactating mothers upon their return to work after maternity leave.
It explicitly states that arrangements should be made for employees who are breastfeeding and that thirty-minute breaks be awarded twice per day for breastfeeding or expressing milk on each working day for the first six months of the infants’ life. This is as highlighted in paragraph 5.13 of the code.
Section 26 of the Basic Conditions of Employment Act 75 of 1997 further states that no employer may require or permit a pregnant employee or an employee who is nursing a child to perform work that is both hazardous to her health or her child’s health. This is also reiterated under the code, which outlines clear guidelines for employers and employees concerning the protection of the health of women against potential hazards in their work environment during pregnancy, after the birth of a child, and while breastfeeding. This is important to note as protective measures and adjustments must be made by the employer to accommodate pregnant or breastfeeding employees.
Employers are encouraged to keep risk assessments for expectant or new mothers under regular review, as stated in paragraphs 5.2 and 5.11 of the code, as there are a number of associated risks to consider for breastfeeding workers. An example will be if an employee is exposed to biological or chemical hazards. This could have an adverse effect as chemicals could be transferred through breastfeeding.
Health workers, including service workers in healthcare facilities and workers looking after animals or dealing with animal products, are more likely to be infected than other workers. This is as per paragraph 6.4 of the code. Employees who have close contact with young children, such as teachers and educare workers, are at increased risk of exposure to rubella (German measles) and varicella (chicken pox), to name a few. Therefore, parties must collectively agree in this regard.
A further consideration is made for pregnant and breastfeeding employees to attend antenatal and postnatal clinics as required during pregnancy and after birth under paragraph 5.12 of the code. Employees would need to give their employer sufficient notice in advance to attend antenatal and postnatal clinics, as staff would still need to adhere to their employers’ leave policy.
The code is silent on the storage of breastmilk after it has been expressed by employees. This is of concern because if precaution is not taken, this could have a detrimental effect on the infant. Furthermore, the code does not indicate whether adequate or comfortable seating must be made available to lactating employees and whether there should be proper ventilation in the available space. This is important as often employees are forced to use public areas like bathrooms/storerooms with limited privacy and resources. Not all employers have the infrastructure like a private room in an available office. And if not, what other alternatives can then be relied on to accommodate the employee under the circumstances?
The code indicates that employees should be provided with two thirty-minute breaks to express breastmilk; however, is this awarded over and above the lunch and tea time allocation? There is no guidance on whether this would be an extension of the employees’ lunch/tea time or whether the employee would be remunerated for this time.
Privacy is essential for lactating employees, and the area where a chair and desk can be utilised is equally as important. Furthermore, the employee will require electrical output for the time spent. The right to privacy and human dignity are enshrined in The Constitution of the Republic of South Africa 1996.
Notwithstanding those above, it would be advantageous for the employee to approach their relevant HR or management team before going on maternity leave. This allows parties to collectively agree on the transition when the lactating employees return to work from maternity leave. More so, parties agree in advance on terms to ensure that the code is adhered to in the interests of both the employer and the employee. The finer detail can also be included in the discussions with management. This is imperative since the code is silent on some important provisions which are yet to be promulgated by the legislature.
Should the employee not be allowed to express breastmilk during working hours throughout the first six months of the infant’s life, the employee could have the right of recourse by lodging a formal grievance. If the grievance remains unresolved, the employee has the right to further refer the dispute to the CCMA or the relevant Bargaining Council.
Parties are advised to collaborate with each other to find suitable means to collectively agree on terms in the best interests of the business and employees. This will eliminate any conflict upon the employees’ transition and return to work.
Want to know more about maternity leave in the workplace? Contact your nearest SEESA Labour Legal Advisor for expert advice. Alternatively, leave your details on our website and a SEESA representative will contact you.
About The Author:
Tamsyn Rowan-Braaf started her career at SEESA in April 2018. She is currently a Legal advisor. She completed her LLB through Unisa and her LLM in Commercial Law through UCT. She is an Admitted Attorney of the High Court of South Africa.
Resources:
- Basic Conditions of Employment Act 75 of 1997;
- Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child;
- The Constitution of the Republic of South Africa 1996- https://www.capelabour.co.za/breastfeeding-in-the-workplace