Maternity leave case law and how it affects your maternity leave policy
This MIA v State Information Technology case refers to a male parent (employee) who lodged a successful unfair discrimination claim against his employer for not being awarded maternity leave when his child was born by a surrogate.
We've all come to accept that maternity leave will only be awarded to pregnant female employees. But this judgement requires you to revisit your maternity leave policies to ensure they are not the subjects of unfair discrimination claims by parents who are not giving birth to their children.
So how do you make sure your maternity leave policy is labour law proof?
Click here to find out…
Your options if you decide to pay for maternity leave
Option #1: She can't leave the company for six/twelve months after maternity leave
If you offer paid maternity leave, you can specify that she must stay at the company for at least six or twelve months after returning to work. Otherwise she'll have to repay the pro-rated maternity leave.
Option #2: Leave with full pay and full benefits
Your employee will continue to receive her normal salary and her normal staff benefits while she's on maternity leave.
Keep reading for two more options…
Get more than just answers to your burning maternity leave questions...
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With Your Maternity Leave Solution you'll not only get 33 legally compliant answers to your burning maternity leave questions, you'll also get:
A sample maternity leave policy you can customise to suit your business;
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Last two options for maternity leave...
Option #3: Leave without pay but with benefits
You won't pay your employee her normal salary but will pay her normal staff benefits. Membership of the retirement fund continues for this period. You can elect to only pay a portion of the normal contribution and she will pay the remainder of her contributions to the fund for her maternity period.
Group Life cover should continue for this period. This can include death, temporary disability, permanent disability and funeral policy. You can elect to cover the single rate of cover for your employee and she'll cover the remainder of her contributions.
If your company provides medical aid, then the medical aid cover must continue to ensure full cover. You must decide how you'll fund it, i.e. the employee pays or you pay it as a loan which the employee may need to pay back when she returns to work.
Option #4: Leave without pay and without benefits
You don't pay your employee during this period.
Membership of the retirement fund continues but your employee can either take a 'rest period' or make no contributions to the fund, or she's responsible for the full contribution.
Group Life cover should continue for this period. This can include death, temporary disability, permanent disability and funeral policy. Your employee will have to cover the full amount of her contributions.
If your company provides medical aid, then the medical aid cover must continue to ensure full cover. Your employee is fully responsible for the full contribution amount.
Note: Maternity leave was previously awarded to female employees. Since the recent MIA v State Information Technology case, the rules have changed. Join labour law expert, Lizle Louw, for a 2-hour breakfast where she'll show you:
What the judgement from this case means for your employees;
What to amend in your maternity leave policy so you're not accused of unfair discrimination; and
Other policies that may be affected by this judgement.
Click here for more details…
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