Pregnancy in the workplace. Do employers have a duty to protect female employees and their unborn children during pregnancy?
Pregnancy in the workplace scenario
Mary works for a company manufacturing hazardous chemicals. Mary works in the manufacturing plant and is exposed to the hazardous chemicals on a daily basis. Mary was recently informed that she and her husband is expecting their first born. Although Mary is excited by the news she is also concerned about the impact the pregnancy can have on her work and more importantly the impact that the exposure to the chemicals can have on the pregnancy.
The workplace pregnancy question
Are Mary and her child protected by law in terms of her employment and the chemicals she is exposed to during the pregnancy?
The legal position in South Africa related to pregnancy in the workplace
Several aspects must be addressed in the matter mentioned supra.
The first to be dealt with is that under the Constitution of the Republic of South Africa 108 of 1996.
Section 9: Equality
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
The second aspect to focus on is that under the Basic Conditions of Employment Act 75 of 1997:
Section 26: “Protection of employees before and after birth of a child
(1) 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.
(2) 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-
(a) 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
(b) it is practicable for the employer to do so”.
The third and last matter is that dealt with under the Occupational Health and Safety Act 85 of 1993.
Section 8 “General duties of employers to their employees – (1) Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees”.
The Nasciturus fiction
Although an unborn child is not regarded as a person in South African law it has a right to protection in terms of the nasciturus fiction and nasciturus rule. In terms of this rule a right that would have fallen on a person already born is a right that can also fall on an unborn foetus if it would be to the advantage of such foetus.
A female staff member working with hazardous chemicals which can have a detrimental effect on the foetus must be protected by removing her from such a hazardous environment and provided with alternative work that would not be detrimental to the health or safety of such unborn child.
Pregnancy in the workplace policy
A policy should exist that informs female employees to report pregnancy so that a decision could be made after consulting with the occupational medical practitioner and/or gynaecologist at what stage of the pregnancy the employee should be provided alternative employment not having an impact on the pregnancy.
Should something happen to the unborn foetus due to the work the mother performs it would be a matter for the employer to answer on. Something that could fall within the ambit of Health & Safety Legislation or the law of torts.