Workplace mediation and the Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child

Download a PDF booklet on the Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child

Up for discussion:

■ Employers’ legal responsibilities and recommended practices for protecting the health and safety of pregnant and breast-feeding employees

■ How can mediators assist with challenges arising from compliance

■ FAQ: Protecting pregnant and breast-feeding employees in the workplace

Workplace mediation and the Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child

This South African Government Gazette notice, issued in 1998, details a Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child, which outlines employers’ legal responsibilities and recommended practices for protecting the health and safety of pregnant and breast-feeding employees. The code specifically addresses physical, ergonomic, chemical, and biological hazards in the workplace that could potentially harm pregnant employees or their children. It also recommends various adjustments to working conditions and arrangements to accommodate pregnant and breast-feeding employees, such as providing suitable alternative employment, allowing for breaks for breastfeeding, and providing access to antenatal and postnatal clinics.

How can mediators assist with challenges arising from compliance with the Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child:

■ Risk assessment and hazard control: The Code requires employers to conduct and document risk assessments to identify workplace hazards, assess the risk they pose to employees, and take appropriate steps to eliminate or control the risk. For instance, employers must “[i]mplement appropriate measures to eliminate or control hazards identified in the risk assessment”. They must also “[s]upply employees with information about and train them in the risks to their health and safety and the measures taken to eliminate or minimise them”.

Mediation can help if an employer and employee have a disagreement regarding what constitutes a hazard, the level of risk a particular hazard poses, or the best way to mitigate risk.

■ Adjusting working conditions: The Code emphasises the employer’s duty to adjust working conditions and/or work responsibilities to prevent pregnant or breastfeeding employees from being exposed to risks. Mediation may be helpful if the employer and employee disagree about what adjustments should be made. For example, “the exposure of pregnant and breast-feeding employees to extreme heat may lead to dizziness and faintness, particularly in the case of women performing standing work”. “Lactation may also be impaired by heat dehydration”. To minimise these risks, the Code states that “employers should limit the exposure of pregnant and breast-feeding workers to extreme heat”. Additionally, they should “make arrangements for access to rest facilities and refreshments…in conditions of extreme heat”.

Mediation would allow all parties to communicate their needs and come to a resolution.

■ Alternative employment: If adjusting an employee’s current role isn’t feasible, the Code requires employers to offer suitable alternative employment. The Code recommends that employers keep “a list of employment positions not involving risk to which pregnant or breast-feeding employees could be transferred”. However, the Code also states that this alternative employment must be “on terms that are no less favourable than the employee’s ordinary terms and conditions of employment”.

Mediation can help if the employer and employee disagree about what “suitable alternative employment” means in practice.

■ Breaks for breastfeeding: The Code stipulates that arrangements “should be made for employees who are breast-feeding to have breaks of 30 minutes twice per day for breast-feeding or expressing milk each working day for the first six months of the child’s life”. If there is a disagreement between the employee and the employer about scheduling these breaks, mediation can help both parties come to a mutually beneficial agreement.

■ Antenatal and postnatal clinic visits: The Code states that arrangements “should be made for pregnant and breast-feeding employees to be able to attend antenatal and postnatal clinics as required during pregnancy and after birth”.

Mediation can be beneficial if there is a scheduling conflict between the employer’s needs and the employee’s need to attend these appointments. Mediation would allow for a respectful conversation about how to minimise any disruption to work while respecting the employee’s healthcare needs.

■ Communication and information sharing: According to the Code, “workplace policies should encourage women employees to inform employers of their pregnancy as early as possible to ensure that the employer is able to identify and assess risks and take appropriate preventive measures”. When an employee tells their employer that they are pregnant, “her situation in the workplace should be evaluated”. This evaluation should include “an examination of the employee’s physical condition by a qualified medical professional”, “the employee’s job,” and “workplace practices and potential workplace exposures that may affect the employee”. If an evaluation finds that a pregnant employee is at risk, “the employer must…inform the employee of the risk”. The employer should also, “after consulting the employee and her representative, if any, determine what steps should be taken to prevent the exposure of the employee to the risk by adjusting the employee’s working conditions”.

Mediation can help if communication breaks down or if misunderstandings arise at any point, especially when discussing sensitive topics like pregnancy or health information.

Full details on the Code can be obtained here: https://www.labour.gov.za/DocumentCenter/Code%20of%20Good%20Practice/Basic%20Condition/Code%20of%20Good%20Practice%20Basic%20Conditions%20of%20Employment%20and%20Pregnancy.pdf

FAQ: Protecting Pregnant and Breast-feeding Employees in the Workplace

1. What are the legal rights of pregnant employees in the workplace?

The South African Constitution protects the right to bodily and psychological integrity, including decisions concerning reproduction. This means no one can be discriminated against or dismissed because of pregnancy. Additionally, the Basic Conditions of Employment Act (BCEA) prohibits employers from requiring or permitting pregnant employees to perform work that is hazardous to their health or the health of their child.

2. What responsibilities do employers have towards pregnant and breast-feeding employees?

Employers are legally obligated to provide a safe and healthy work environment for all employees, including pregnant and breast-feeding individuals. This includes conducting risk assessments, implementing measures to control identified hazards, providing employees with information and training on workplace risks, and offering suitable alternative employment if a pregnant employee’s current role poses a danger to her health or her child’s.

3. How are potential hazards assessed in the workplace?

Employers should identify and regularly review potential risks to pregnant or breast-feeding employees within the workplace. This includes assessing physical hazards (noise, vibration, radiation, etc.), ergonomic hazards (heavy lifting, prolonged standing, repetitive motions), chemical hazards (exposure to harmful substances), and biological hazards (exposure to infectious agents).

4. What adjustments can be made to the workplace to accommodate pregnant employees?

Adjustments can include providing adjustable workstations, frequent rest breaks, access to toilet facilities, modified protective clothing, and limiting exposure to extreme temperatures, noise, or strenuous physical activity. If necessary, employers should transfer pregnant employees to alternative positions that do not pose a risk to their health or their child’s.

5. What should an employee do if they become pregnant?

Employees should inform their employer about their pregnancy as early as possible. This allows the employer to assess potential risks and implement appropriate preventative measures.

6. What are the specific risks associated with exposure to certain physical hazards during pregnancy?

Exposure to vibration and mechanical shocks can increase the risk of miscarriage and premature labour. Extreme heat can lead to dizziness and faintness, while extreme cold has been associated with pregnancy complications. Prolonged exposure to noise can elevate blood pressure and cause fatigue. Ionizing radiation is known to be harmful to the foetus, and exposure should be minimised or eliminated.

7. What are the specific risks associated with exposure to certain chemical hazards during pregnancy?

Exposure to lead, mercury, PCBs, organic solvents, pesticides, and herbicides can have detrimental effects on both the mother and the developing foetus. Antimitotic drugs used in cancer treatment can damage genetic information and pose a cancer risk. Exposure to ethylene oxide, used in sterilisation procedures, should also be minimised.

8. What provisions are there for breastfeeding mothers returning to work?

Employers must provide breastfeeding employees with breaks of 30 minutes twice per day for breastfeeding or expressing milk for the first six months of the child’s life. Employers should also consider providing a private and hygienic space for these activities.

Compiled by Eugene Opperman (B.Proc. LLB.) (LSSA L.E.A.D., ADR Network, FAMAC, NABFAM), a legal practitioner and accredited mediator.