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Employment Law: Pregnancy and women in high risk areas

 

Introduction

Many employers operating in hazardous and high risk industries often find themselves in a predicament when they deal with pregnant employees employed in positions that are in high risk areas and are deemed hazardous. The employer in many instances is torn when faced with two contravening provisions in law.

Section 6(1) of the Employment Equity Act states that:

‘No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground’

Section 26 of the Basic Conditions of Employment Act further states 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.
  • ‘During an employee’s pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if—
  • the employee is required to perform night work, as defined in section 17(1) or her work poses a danger to her health or safety or that of her child; and
  • it is practicable for the employer to do so.

The identification and assessment of hazards

In terms of the code of good practice certain hazards have been identified that may have an effect on the health of pregnant employees:

  • Physical hazards which include exposure to noise, vibration, radiation, electric and electromagnetic fields, radioactive substances and work in extreme environments.
  • Ergonomic hazards may pose hazards to the health and safety of pregnant and breast-feeding employees and include heavy physical work, static work posture, frequent bending and twisting, lifting heavy objects and movements requiring force, repetitive work, awkward postures, no rest, standing for long periods and sitting for long periods.
  • Chemical hazards in that contact with harmful chemical substances may cause infertility and foetal abnormalities. Some chemicals can be passed to the baby during breast feeding and could possibly impair the health and the development of the child.
  • Many biological agents, such as bacteria and viruses, can affect the unborn child if the mother is infected during pregnancy. Biological agents may also be transferred through breast-feeding or by direct physical contact between mother and baby. Health workers, including service workers in health-care facilities and workers looking after animals or dealing with animal products are more likely to be exposed to infection than other workers.

While it is possible in many instances to manage the risks involved and put preventative measures in place, unfortunately it is not possible in all industries where risk cannot be avoided. In these circumstances the company will still need to ensure that employees are protected.

In order to address the issues and ensure that employees are not unfairly discriminated against while receiving proper protection in terms of the employee’s health and that of their unborn baby, the following points will be discussed with reference to Manyetsa v New Kleinfontein Gold Mine (Pty) Ltd (JS706/14) [2017]

Establish a binding pregnancy policy

It is essential that employers operating in high risk areas create and implement a policy regarding pregnancy and women working in high risk areas. The employer must ensure that all employees sign an acknowledgement that they have received and are aware that the policy is binding on all employees. The policy should make provision for the protection of pregnant employees rendering services in work areas defined as high risk or hazardous to their health and that of their unborn baby. The policy should provide that if the company is unable to offer suitable alternative risk free work, as stipulated in Section 26 of the BCEA, for the duration of the employee’s pregnancy, that the employee may be requested to go on extended unpaid leave.

An important issue to consider is whether such a policy is regarded as unfair discrimination. It is clear that the policy differentiates between people as the policy is only applicable to pregnant employees. It is however trite that not all differentiation amounts to discrimination. The court found that there is a gap in the provisions of section 26(2) of the BCEA, which implies that the employer in such circumstances, can fill that void from a range of possibilities, which include placing the pregnant employee on paid suspension, or placing her on unpaid suspension, or, even considering other forms of leave which will not impact on the finances of the employee whilst she is pregnant and unable to perform her duties prior to taking official maternity leave. The court further held that any alleged unfairness or lack of rationality in implementing the extended unpaid maternity leave ought to be considered within the context of whether genuine attempts were made to find alternatives for the employee.

It is important to understand that this policy is not a “get out of jail free card” as the employer has a responsibility and obligation towards their employees to make every effort to offer suitable alternative risk free work on terms and conditions that are no less favourable to the employee.

Providing suitable alternative risk free work

Finding alternative positions for employees proves no easy feat, however it remains the responsibility of the employer to explore all options. The test of suitable alternative employment involves a consideration of whether upon the employer’s assessment, the position is available, whether that position is capable of being a suitable alternative and whether that position is suitable for that employee. The court indicated that it cannot be read in the provisions of section 26 (2) of the BCEA that suitable, alternative employment is guaranteed in the event of a pregnant employee not being able to perform her duties due to it being hazardous to her health. A purposive interpretation of these provisions reveal that they were meant to protect pregnant employees by guaranteeing the right to be considered for alternative suitable employment which is in line with constitutionally guaranteed right to fair labour practices.  The court further held that the employer is not obliged to create a position for the employee if it is not practical or reasonable to do so. Once all options have been exhausted and the employer has done all that is reasonably possible and there has been no success in securing or offering a suitable alternative position, the employee may be requested to go on extended unpaid leave for the duration of her pregnancy.

Conclusion

It would be beneficial to the company and the employee, especially those operating in high risk areas, to make use of such a policy to ensure that the health of pregnant employees and their unborn babies are not affected by their work and that the correct procedure is followed to avoid any claims of unfair discrimination. Employers are therefore advised to ensure:

  • that a proper pregnancy policy modelled to the BCEA is in place that stipulates an employee may be placed on unpaid leave for the duration of her pregnancy;
  • that all employees sign an acknowledgement that they have received and are aware of the policy to ensure that the policy is binding; and
  • that suitable alternative positions are explored, even though the employer is not obliged to create a position.
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