In terms of the common law, an employer has a duty to provide a safe working environment for its employees. This is further qualified by the legal obligation of an employer to maintain a working environment that is safe and healthy, as determined by the Occupational Health and Safety Act 85 of 1995 (OHS Act). Similarly, the Basic Conditions of Employment Act, 75 of 1997 (BCEA) expressly provides for the protection of employees before and after the birth of a child, in that no employer may require or permit a pregnant employee (or an employee who is nursing her child) to perform work that is hazardous to her health or the health of her child.
Given the above legal obligations imposed on employers, while the effects of COVID-19 on pregnant women and their unborn children remain largely unknown at this stage, employers should be encouraged to “go the extra mile” when considering the health and safety of pregnant employees during the COVID-19 pandemic. Some practical considerations to be adopted by employers aiming to accommodate pregnant employees in the workplace are as follows:
- Allowing pregnant employees to work from home if this is possible in terms of the employer’s operational requirements;
- Affording pregnant employees additional leave benefit on a quid pro quo This would mean that the employee would agree to take a form of additional paid leave, and work it back at a later stage;
- If the employer’s operational requirements require a pregnant employee to attend the premises of the employer, employers could consider providing a safe and isolated space within the office premises in which the pregnant employee can fulfil her duties whilst ensuring her health and safety.
Given the potential vulnerability of pregnant employees and the duty of the employer to provide a safe working space for all employees, employers should consider further means of giving effect to their legal obligations towards pregnant employees, especially in the context of the COVID-19 pandemic.
Lastly, given the recent amendments to the BCEA regarding parental leave, the same additional considerations should be applied in respect of same sex and adoptive parents, to the extent applicable.
The Employment Survival Guide is an informative guide covering a number of topics, which is being published purely for information purposes and is not intended to provide our readers with legal advice. Our specialist legal guidance should always be sought in relation to any situation. This version of the survival guide reflects our experts’ views as of 25 March 2020. It is important to note that this is a developing issue and that our team of specialists will endeavour to provide updated information as and when it becomes effective. Please contact our employment team should you require legal advice amidst the COVID-19 pandemic