When can an employee take maternity leave?

There are a number of complexities around how maternity leave works. One area where complexities arise, is the timing, and in particular, who decides when an employee must take maternity leave? Is the employee allowed to decide this, or can the employer dictate when it must be taken?

The answer lies in section 25(2) of the Basic Conditions of Employment Act.

That section provides as follows:

“An employee may commence maternity leave –

(a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or

(b) on a date from which a medical practitioner or midwife certifies that it is necessary for the employee’s health or that of her unborn child.”

The effect of this section is that the pregnant employee decides when to commence her leave (provided that this is anytime from four weeks before the expected delivery date). For example, she may decide to start her leave 2 weeks before the expected delivery date, or on the delivery date.

The only exception to this, is where a medical practitioner or midwife has certified that it is necessary for her to start leave on a different date based on the employee’s health or that of her unborn child. For example, even if the expected delivery date is two months away, if a medical practitioner or midwife has certified that it is necessary for her to start leave at that point based on her health or that of her unborn child, she can start it then.

The result of these sections is that the employer has no power to dictate when the leave should commence, and the employee (in consultation with her doctor) takes the decision on this.

Despite this, many employers are unaware of who decides when an employee must take maternity leave, and they believe that they can require the employee to start her it 4 weeks before delivery. This is based on a misreading of section 23(2)(a), which does not recognise that the section gives the employee the choice. Where employers’ policies are not in line with these provisions, they need to be revised to bring them into line with these provisions.