Currently, none of the major pieces of employment and labour legislation in South Africa specifically deal with an employer’s obligations when it offers childcare facilities to its employees’ children.
Our legislation does however contain regulations providing pregnant employees with minimum childbirth rights and also seek to protect them after the birth of a child and whilst breastfeeding. A code of good practice on the protection of employees during pregnancy and after the birth of a child was enacted to provide guidelines for employers and employees concerning the protection of the health of women against potential hazards in their work environment. Hazards may include anything from physical hazards such as exposure to noise, vibration or radiation to ergonomic hazards such as heavy physical or repetitive work and sitting or standing for long periods of time.
Section 26(1) of the Basic Conditions of Employment Act, 1998 prohibits employers from requiring or permitting pregnant or breastfeeding employees to perform work that is hazardous to the health of the employee or the child. In practice, this means that employers are expected to identify potential risks to pregnant or breastfeeding employees and to put in place protective measures and adjustments to working arrangements for pregnant or breastfeeding employees. Should the work pose a danger to the health and safety of a pregnant employee or that of her child, an employer is required to offer the employee suitable alternative employment. This also applies to pregnant employees engaged in night work. The alternative employment must be on terms on the whole not less favourable than the employee’s ordinary terms and conditions of employment.
The code further stipulates that arrangements should be made for employees who are breastfeeding to have breaks of 30 minutes twice a day for breastfeeding for the first six months of the child’s life.
Some employers do offer on-site childcare facilities at or near the workplace for preschool children of workers. Where these facilities are formal day care, crèche or nursery facilities, employers must bear in mind the standards set by the Department of Education for childcare facilities in general. These standards would generally regulate the child minder/child ratio a well as other requirements such as the size of the rooms, ablution facilities etc.
In addition to the above, an employer’s risk from a health and safety point of view will increase when it offers childcare facilities on its premises since it will also be responsible for the health and safety of the children whilst on the premises, in the same manner it would be responsible for the health and safety of its own employees and other visitors.