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Maternity protection and paternity leave

The International Labour Organisation’s Maternity Protection Convention 2000 (183) provides for maternity leave, maternity benefits, health protection for pregnant or breastfeeding women, employment protection and non-discrimination, and nursing breaks. Zambia has domesticated the provisions of the convention through the enactment of the Employment Code Act, No. 3 of 2019. The Employment Code Act has also introduced paternity leave as a feature that relates to maternity protection. This article’s focus is on maternity protection and paternity leave as provided in the Employment Code Act, No.3 of 2019.

Maternity Protection

The Maternity Protection Convention provides for fourteen weeks maternity leave, which the Employment Code Act has accordingly adopted by increasing maternity leave from twelve to fourteen weeks.

Maternity Leave

The Employment Code Act, provides that a female employee on production of a medical certificate is entitled to fourteen weeks maternity leave. This leave is inclusive of weekends and public holidays.

Ways of taking maternity leave

An employee has two options of taking her maternity leave. Option one, the employee can begin her maternity leave immediately before the expected date of delivery, but must leave at least six weeks of the maternity leave to be taken after delivery. Option two, the employee may begin the fourteen weeks leave after the delivery.

Notice of maternity leave

A female employee shall give notice in writing as maybe reasonable in the circumstances, to the employer, of that employee’s intention to proceed on maternity leave on a specified date and to return to work thereafter.

Multiple births

In case of an employee who has multiple births (for example twins, triplets) the maternity leave shall be extended for another four weeks.

Premature birth

Where a female employee gives birth to a premature child the maternity leave shall be extended for a period as recommended by a medical doctor.

Paid maternity leave

A female employee has to complete at least two years of continuous service with the same employer from the date of first engagement or since the last maternity leave, to be entitled to maternity leave with full pay. However, female employees who do not meet the two years of continuous service threshold can still proceed on unpaid maternity leave.

Miscarriage

A female employee who completes at least one year of continuous service with the same employer and suffers a miscarriage during the third trimester of pregnancy or delivers a stillborn child, is entitled to six weeks leave on full pay right after the miscarriage or still birth.  The miscarriage or stillbirth has to be certified by a medical officer.

Expiration of maternity leave

On expiry of a female employee’s maternity leave, the employee should return to the job which the employee held right before the maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which applied to the employee before the maternity leave.

Maternity leave not to affect other leave

A female employee may, right after the expiry of maternity leave before resuming duties and with the approval of the employer, proceed on sick, annual, compassionate or other leave to which the employee is entitled.

A female employee shall not forfeit her annual leave entitlement because of having taken maternity leave.

Fitness to resume work

A female employee can only resume work after six weeks from the date of delivery, unless a medical doctor certifies that the employee is fit to resume.

Protection against dismissal connected with maternity leave

An employer shall not, as a result of an employee’s pregnancy or maternity leave: terminate that employee’s employment, impose any penalty or disadvantage the employee or adversely change a condition of employment in respect of that employee.

It should be noted, however, that this does not stop the summary dismissal of an employee where the employee is found guilty under any of the circumstances that warrant summary dismissal.

Protection from harmful work

The Employment Code Act further makes provision for the female employee to be given sufficient rest when the delivery date is near. Two months before the delivery date, the female employee should not be given work beyond the normal days’ work. Furthermore, the employee should not be given strenuous work that compels her to stand for many hours or be given work that may affect her health or that of the unborn child.

An employer must provide alternative work, where the work performed by the employee is a danger to her health and that of the unborn child.

Pregnant or Nursing employee

An employer shall not give the female employee work at night when she is in the third trimester of her pregnancy or is nursing a child who is six months and below.

Nursing breaks

A female employee who is nursing a newly born baby is entitled to:

  1. Two nursing breaks of thirty minutes each;
  2. One nursing break of one hour in a day;

Provided that the nursing breaks are for a maximum period of six months from the birth of the child. These breaks should not be deducted from her normal working hours. Furthermore, the employee is still entitled to lunch break.

Paternity Leave

The Employment Code Act provides that a male employee who has served the employer for a continuous period of not less than one year immediately before the date of commencement of the paternity leave, is entitled to paternity leave of five continuous working days, if the employee satisfies the following conditions:

  1. The employee is the father of the child in respect of whom paternity leave is sought ;
  2. The employee has submitted to the employer, the birth record of the child in respect of whom paternity is sought; and
  3. The leave is taken within seven days of the birth of a child.

The provision on paternity leave only apply where there is no agreement between an employer and an employee which is more favourable to the employee than this provision.

This article was published in Zambia Daily Mail Newspaper on 18th July, 2019.

The author is Inutu Mushambatwa

Public Relations Officer

MINISTRY OF LABOUR AND SOCIAL SECURITY

 

 

 

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