Welcome to part 2 of what you need to know about The Employment Code of 2019, where I explore Annual, Maternity, Paternity and other types leave.
There has been quite a lot of speculation in regards to maternity leave and how this significantly increases the cost of hiring female employees. The major change that the The Employment Code has brought about is that all female employees are entitled to maternity leave, regardless of how long they have been in the organisation upon production of a medical certificate, however, not all maternity leave is paid.
Where a female employee remains in continuous employment with the same employer for a period of twenty-four months immediately preceding the beginning of leave under this section, the maternity leave under subsection (1) shall be with full pay.The Employment Code Act No.3 of 2019
This entails, that as per the old act paid maternity leave will continue to apply to female employees who have been with an organisation for 24 months or who have clocked 24 months since their last paid maternity leave.
- General (Ordinary) Maternity Leave – 14 weeks
- Maternity Leave with Multiple Births – 18 weeks
- Maternity Leave with a Premature Birth – Extension of Maternity Leave shall be recommended by a medical doctor.
- A Miscarriage in the third trimester or bearing of a still born child – 6 weeks* (To qualify for paid leave in this instance an employee has to have been in continuous employment for 12 months as opposed to 24 months).
It should be noted that The Employment Code also states that a female employee shall not resume work within 6 weeks of delivery unless a medical doctor certifies her to be fit to resume work.
Other Maternity Benefits
- Protection from harmful work – Employees are exempt from performing work in excess of a normal days work 2 months before their EDD.
- Subject to a Health Practitioners recommendation employees who are pregnant shall not perform duties requiring continuous standing or that are detrimental to their health and that of their unborn children.
- Employees in their third trimester or nursing a child six months or below shall be exempt from night duty.
- Nursing Breaks – An employee nursing an unweaned child under 6 months is entitled to two breaks nursing breaks of thirty minutes or one nursing break of one hour per day.
- An employee shall not forfeit their annual, sick or compassionate leave by virtue of them taking their maternity leave.
- Does an employee have to disclose her EDD? Yes she does as a lot of protections are centered around that.
- How do you calculate 14 weeks (does it include Saturday, Sunday and Public Holidays)? 14 weeks should be taken as 14 calendar weeks as a composite period.
- How long does it take for one to qualify for subsequent Paid Maternity Leave? It remains at 24 months.
Gone are the days where annual leave was easy to understand…
36. (1) An employee, other than a temporary or casual employee, who remains in continuous employment with the same employer for a period of twelve consecutive months shall be granted, during each subsequent period of twelve months while the employee remains in continuous employment, annual leave on full pay at a rate of at least two days per month.
The Employment Code Act No.3 of 2019
Here are a few things we can possibly agree on;
- An employee will continue to be granted a minimum of 2 days per month.
- Casual and Temporary Employees are excluded from Annual Leave.
However, we are left with quite a bit of uncertainty owing to the wording ‘
during each subsequent period of twelve months...’ Does that mean an employee will now only be entitled to annual leave after continuous employment for a period of twelve months? Clarity will continue to elude us unless it is interpreted by the high court, but we can pretend.
Calculation of Annual Leave
Previously the commutation of Annual Leave days was calculated on Basic Pay, The Employment Code has however changed this to full pay.
(FP x D)/26 Days*
where FP = full pay
D=number of accrued leave days
* = Please note that the actual act states (FP x D) ) 26 days – I have gone ahead to make the assumption that it was a typo.
“Full pay” means basic pay, allowances and the cash equivalent of any allowances in kind applicable for a period not exceeding one month, but does not include payments in respect of any bonus. – The Employment Code Act No.3 of 2019
The Employment Code also states that an Employer shall pay an employee for leave days still due at the end of 12 consecutive months, thus leave days cannot be carried forward. However, what this entails for contracts of employment that allow for forfeitures is yet to be determined.
An employee upon the production of a medical certificate from a health practitioner shall proceed on sick leave
Entitlements Short Term Contracts
26 working days on full pay and thereafter 26 days on half pay.
Entitlements Long Term Contracts
First 3 months on full pay and thereafter half pay for the next 3 months.
Please note that this does not apply for incapacity arising from occupational related accidents or diseases.
The sick leave entitlements beg the question ‘ What happens to the entitlements if the employee is still sick after the prescribed periods?’
An employer may, on the recommendation of a medical doctor, discharge an employee on medical grounds where the employee does not recover from the illness or injury, after six months of the date of the illness or injury, and the employee’s entitlement to sick leave shall cease.
The Employment Code Act No.3 of 2019
Please note that the Code says ‘after 6 months’, which unfortunately doesn’t seem practical for employees with short term contracts (26 working days on full pay + 26 working days on half pay, gives us 2 months).
It should be noted that an employee terminated on medical grounds is entitled to a lump sum of not less than three months for each completed year of service.
- An employee is entitled to compassionate leave with full pay for a period of at least twelve days in a calendar year where that employee has—
- (a) lost a spouse,parent, child or dependent; or (b) a justifiable compassionate ground.
Family Responsibility Leave
Family Responsibility Leave is paid, non-cumulative and exclusive of annual leave. It is granted to employees who have worked for a period of six months or more. The following prescribes the terms;
- A leave of absence with pay for a period not exceeding seven days in a calendar year to enable the employee to nurse a sick spouse,child or dependent.
- Three paid leave days per year to cover responsibilities related to care, health or education for that employees child, spouse or dependent.
Male Employees who have been in service for atleast 12 months will be entitled to at least five continuous working days of paternity leave if;
- The employee is the father of the child.
- The employee has submitted a birth record of the child.
- The leave is taken within 7 days of the birth of a child.
It should be noted that this is the one leave that does not prescribe pay.
No definition has been provided for forced leave but it usually applies when an organisation is attempting to keep their costs or numbers down for a particular period or preceding extreme measures such as redundancy.
The Employment code states that employers shall pay employees basic pay during a period of forced leave and The Minister may prescribe under which circumstances an employee is required to be sent on forced leave.
What does it all mean?
With a year having 298 working days, an employees leave could technically exceed the prescribed working days. However, if one single employee, needed to take maternity, sick, family responsibility, and compassionate leave it wouldn’t be far fetched to say that they are having difficult year and genuinely need the days, which speaks leaps and bounds of how far we have come as a society.
However, unlike most mission, vision and value statements, most businesses aren’t solely in it for the people, the bottom line matters, A LOT! I suppose the question is what is the balance?