Business

Maternity pay is not a certainty

Legal Notes

Simone Bowie Jones

Wednesday, September 12, 2012    

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PREGNANCY is supposed to be one of the happiest times in a woman's life. Very often, however, the good news of a pregnancy is accompanied by feelings of worry about the expenses associated with it. Some women also worry about the effect a pregnancy can have on their job security. Fortunately, The Maternity Leave Act (the Act) addresses a woman's right and entitlement to maternity leave as well as to pay while on maternity leave.

Employers are generally obliged to grant maternity leave where a woman has been continuously employed for at least one year at the time she proceeds on leave, has expressed an intention to return to work with the employer at the end of her maternity leave, and where requested, has provided a medical report on her pregnancy. In some countries, such as Canada, legislation has been enacted that speaks to parental leave as opposed to maternity leave, as both the father and mother are entitled to take time off work when having or adopting a baby. Unfortunately, our legislation has not yet evolved to embrace this concept, as a "worker" is clearly defined under the Act as meaning an individual of the female sex.

The minimum period for maternity leave as provided for in the Act is 12 weeks. This period may be extended by an additional 14 weeks if a woman develops an illness as a result of pregnancy or based on the state of the child's health. Many women believe that they are required by law to wait until their baby is born to go on maternity leave. This is in fact not the case. A pregnant worker may proceed on maternity leave from as early as 11 weeks prior to her due date. A woman will also be entitled to maternity leave after a late-stage miscarriage.

The Act requires employers to provide "maternity pay" for the first eight weeks of maternity leave, however, some employers opt to make maternity payments for the full 12-week period. The Act details how the period of continuous employment should be determined and how maternity pay should be computed. Surprisingly, there are still countries in which employers are not mandated to provide paid maternity leave. As such, we can be grateful that our legislators at least appreciated the importance of ensuring that mothers are not entirely deprived of income while on maternity leave.

There are, however, circumstances in which an employer will not be obliged to make maternity payments. For example, where a woman fails to provide a medical certificate requested by her employer, it may negate the employer's obligation to give paid maternity leave. Similarly, if a woman neglects to inform her employer of her expected date of delivery at least two weeks before the date (or as soon thereafter as reasonably practicable), she may find herself without maternity pay. Further, if a woman has taken paid maternity leave on three previous occasions during the course of her employment with a single employer, she will not be entitled to maternity pay with her fourth and subsequent pregnancies. In each of the situations, the employer will nonetheless be required to grant the full period of maternity leave, albeit without pay.

It is important to emphasise that nothing in the Act prevents an employer from offering maternity leave for a longer duration than that required by statute or from granting maternity pay in excess of what is provided for under the Act. In fact, there are a few companies in Jamaica that also grant paternity leave.

The Act also seeks to alleviate the concern that some women have that their employer will terminate their employment while they are on maternity leave. The Act gives women the right to return to work with the employer who granted the leave (or where there has been a change in ownership, the employer's successor) in the same capacity and place in which she was employed, to do work of the same nature and on the same terms and conditions as regards seniority, pension and similar rights.

If it is not practical by reason of redundancy for an employer to permit a woman to return to her previous position, the Act requires the employer, where there is suitable and available vacancy to grant alternative employment, even with a successor/associated company if necessary. The terms and conditions of employment must not be less favourable than those which existed at the time the maternity leave was approved.

The Act also prescribes a formula for the calculation of the sums that should be paid to a woman who ultimately cannot return to work because her position has been made redundant. She will be treated for the purposes of the Employment (Termination and Redundancy Payments) Act and as having been continuously employed by her employer until the notified day of return, and as if her employment had been terminated by her employer by reason of redundancy and without notice on the notified day of return.

Employers should be mindful of the sanctions set out in the Act for failure to comply with its provisions. If an employer fails to grant maternity leave to a woman entitled to same, provide maternity pay in accordance with the Act, allow a woman to return to work after maternity leave and/or terminates a contract of employment for reason of pregnancy, the employer commits an offence and shall be liable on conviction to a fine not exceeding $100,000 and in default to imprisonment. The wronged employee may also seek redress via the Ministry of Labour and/or initiate a claim against the employer.

Simone Bowie Jones is an Associate at Myers, Fletcher & Gordon and is a member of the firm's Commercial Department. Simone may be contacted via simone.bowie@mfg.com.jm or you can visit the firm's website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.

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