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Botswana - Maternity protection - 2011


LAST UPDATE

23 November 2011

SOURCES


Name of Act

Employment Act 1982, Chapter 47:01, Act No. 29, dated 30 November 1982 (Government Gazette, 9 December 1982, Extraordinary, Supplement A, p. A135) as amended up to Employment (Amendment) Act 1992. No. 26, (Government Gazette, 1992-10-09, (Vol. Ref. unknown) , No. 51, pp. A.109-A.113). as amended up to Employment(Amendment)Act,2010 of September 10.

Name of Act

Employment (Maximum Period of Employment Security Arising from Pregnancy) Order 1984, Statutory Instrument No. 153, dated 14 December 1984 (Government Gazette, 28 December 1984, Supplement C, p. C454).

Name of Act

Constitution of Botswana

Other source used

MATERNITY LEAVE


Scope

Maternity protection under the Employment Act covers employees in the private and public sectors, except for certain categories of civil servants.
Employment Act §2(1)

Qualifying conditions

Notice must be given to the employer by submitting a medical certificate indicating that the confinement is expected to take place within six weeks immediately after the date of the certificate.
Employment Act 117(1)

Duration


Compulsory leave

Six weeks after confinement.
Employment Act §117(2) and (8)

General total duration

Twelve weeks.
Employment Act §117 (1)-(2)
Historical data (year indicates year of data collection)
  • 2009: Twelve weeks.
  • 2004: Twelve weeks
  • 1998: Twelve weeks
  • 1994: Twelve weeks

Extension

Two weeks of paid leave in case of illness arising out of confinement; further extension of an unspecified duration is possible.
Employment Act §117(4) and 118(1)
Employment (Maximum Period of Employment Security Arising from Pregnancy) Order §2

Leave in case of illness or complications

The Labour code stipulates two weeks of paid leave in case of illness arising out of confinement, in addition to the 6 weeks of postnatal leave.

Nevertheless, a subsidiary labour legislation, provides a further extension based on a medical certification regarding the illness arisen out from confinement is provided up to 6 weeks after the 6 weeks of compulsory maternity leave.
Employment Act §117(4) and 118(1)
Employment (Maximum Period of Employment Security Arising from Pregnancy) Order §2

RELATED TYPES OF LEAVE


Parental leave

Not provided.
Employment Act

Paternity leave

Not provided.
Employment Act

Adoption leave

Not provided.
Employment Act

RIGHT TO PART-TIME WORK


General provisions

The Act does not establish the right for either pregnant workers or nursing mothers to apply for part-time working hours .
Employment Act

CASH BENEFITS


Maternity leave benefits


Scope

Female employees in the private and public sectors, except for some categories of civil servants
Employment Act §2(1)

Qualifying conditions

A woman must give notice to her employer of her confinement and provide a medical certificate indicating the expected date of delivery. Upon delivering the medical certificate informing her employer of her pregnancy, a woman may nominate in writing another beneficiary of her maternity benefits.
Employment Act §117(1) and (6)

Duration

12 weeks (up to two more weeks as extension of the maternity leave period of 6 weeks after confinement, in case of illness arisen out from confinement).

The amended 2010 Employment Act provides for up to 20 days of paid sick leave a year.
Employment Act §117(5)
Employment (Maximum Period of Employment Security Arising from Pregnancy) Order

Amount

The amended 2010 Employment Order requires employers in designated areas to pay maternity benefits to female employees. The maternity benefit is at least 50% of the basic pay and other benefits she would otherwise be entitled to receive, and is paid for six weeks before and six weeks after the expected date of childbirth; may be extended two weeks if there are complications arising from pregnancy or childbirth.
Employment Act §117(5)
ISSA
Country profile Botswana
Historical data (year indicates year of data collection)
  • 2009: Not less than 25 per cent of basic pay she would have been entitled to receive or 50 per cent for each day of absence, whichever is greater. This rate may be increased by the Ministry of Labour and Home Affairs after consultation with the Minister of Health and the registered employers' and workers' organizations.
  • 2004: Twenty-five percent
  • 1998: Twenty-five percent
  • 1994: Twenty-five percent

Financing of benefits

The cash benefits must be paid by the employer in three installments.
Employment Act §118(1)
Historical data (year indicates year of data collection)
  • 2009: The cash benefits must be paid by the employer in three installments.
  • 2004: Employer
  • 1998: Employer
  • 1994: Employer

Alternative provisions

Notice of intention to terminate a contract which is given without a good cause to a woman worker within three months immediately before the birth of her child will not affect the employer’s obligation to pay the maternity allowance.
Employment Act §120

Parental leave benefits

Not provided.
Employment Act

Paternity leave benefits

Not provided.
Employment Act

Adoption leave benefits

Not provided.
Employment Act

MEDICAL BENEFITS


Pre-natal, childbirth and post-natal care

Except in any personal capacity, no employer shall be liable to pay the medical expenses or any part of such expenses incurred by a female employee during or attributable to her pregnancy or confinement.

There were not identified legal provisions neither on Social Security nor Public Health Insurance.

The Ministry of Health(website) does not make any reference to medical benefits during pregnancy, confinement or the post-natal period.
Employment Act §119

BREASTFEEDING


Right to nursing breaks or daily reduction of hours of work

Two paid 30-minute breaks a day for six months after the woman’s return to work. Applies whether the employee is breast-feeding or otherwise feeds the child herself.
Employment Act §123(1)

Remuneration of nursing breaks

Nursing breaks are paid as if they were ordinary working time.
Employment Act §118

Transfer to another post

Not provided.
Employment Act

Nursing facilities

Not mentioned.
Employment Act

HEALTH PROTECTION


Arrangement of working time


Night work

The Act does not include an express prohibition for pregnant workers or nursing mothers. It is prohibited for young persons between 15:00-18:00 years old, to work from 11:00 p.m to 06:00 a.m. Therefore, a pregnant worker between 15-18 years old is included in the prohibition.
Employment Act §107

Overtime

It is not expressly prohibited for a pregnant worker or a nursing mother to work overtime. Nevertheless, no employee shall be required to work more than nine hours in any one working day or a total of 45 hours in any working week of five days, or to work more than five hours without an interval of at least half-an-hour.
Employment (Maximum Period of Employment Security Arising from Pregnancy) Order Regulation of wages, subsidiary labor legislation §4.

Work on rest days

There is not an express legal prohibition to employed pregnant women on rest days and paid public holidays. It is required an express permission of the Commissioner in writing to employ a child and a young person on rest days and paid public days, therefore, a pregnant worker between 15-18 years old will be subject to this provision.
Employment Act

Time off for medical examinations

Not provided.
Employment Act

Leave in case of sickness of the child

Not provided.
Employment Act

Dangerous or unhealthy work


General

There is not an express legal prohibition to employed pregnant women in dangerous, unhealthy or immoral work. It is prohibited to employed a child and a young person in any work which is harmful to his health and development, dangerous or immoral, therefore, a pregnant worker between 15-18 years old is included in the prohibition.
Employment Act §108

Risk assessment


» Assessment of workplace risks

Not expressly provided for the protection of a pregnant worker.
There are just a few and very general duties in the employer’s head regarding safety and health in working places to guarantee safety and health of all workers.
Employment Act

» Adaptation of conditions of work

Not expressly provided for the protection of a pregnant worker.
There are just a few and very general duties in the employer’s head regarding safety and health in working places to guarantee safety and health of all workers.
Employment Act

» Transfer to another post

Not provided.
Employment Act

» Paid/unpaid leave

It is not expressly provided a leave during pregnancy because of illness or risks associated with the job performed by her.
It is provided an extension of compulsory maternity leave(6 weeks after confinement) up to 6 more weeks (two of them paid)in case of illness medically certified as arisen out of confinement that makes female worker unfit to work.
Employment Act §113.4, 113.5

» Right to return

It is not expressly provided the right of a pregnant woman or nursing mother to return after a leave in case of illness or after confinement and its eventual extension for illness arisen out from confinement, to return to the same job and under the same working conditions she enjoyed before taken this leave.
Employment Act

Particular risks

It is not expressly mentioned any special risk for pregnant workers. It is prohibited to employed a child and a young person on underground work. Therefore, a pregnant worker between 15-18 years old is included in the prohibition.
Employment Act §106

» Arduous work (manual lifting, carrying, pushing or pulling of loads)

Neither mentioned nor prohibited.
Employment Act

» Work involving exposure to biological, chemical or physical agents

Neither mentioned nor prohibited.
Employment Act

» Working requiring special equilibrium

Neither mentioned nor prohibited.
Employment Act

» Work involving physical strain (prolonged periods of sitting, standing, exposure to extreme temperatures, vibration)

Neither mentioned nor prohibited.
Employment Act

NON-DISCRIMINATION AND EMPLOYMENT SECURITY


Anti-discrimination measures

There are not legal provisions prohibiting discriminatory measures when, hiring, promoting, training or remunerating work of women and men that perform the same work and because of sex, pregnancy and civil status.

The Constitution stipulates the follow:

Protection from discrimination on the grounds of race, etc.
No law shall make any provision that is discriminatory either of itself or in its effect.
No person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
The expression "discriminatory" means affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, color, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

This section shall not apply to any law so far as that
law makes provision-
(a) for the appropriation of public revenues or other public funds;
(b) with respect to persons who are not citizens of Botswana;
(c) with respect to adoption, marriage, divorce, burial, devolution of
property on death or other matters of personal law;
(d) for the application in the case of members of a particular race,
community or tribe of customary law with respect to any matter whether to the exclusion of any law in respect to that matter which is applicable in the case of other persons or not; or
(e) whereby persons of any such description as is mentioned in
subsection (3) of this section may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society.
Employment Act
Constitution of Botswana §15

Prohibition of pregnancy testing

Not prohibited.
Employment Act

Protection from discriminatory dismissal

No notice of intention to terminate her contract of employment given without good cause to a female employee within a period of three months immediately before her confinement shall affect the employer’s obligations under this norm in respect of the payment to her of maternity allowance in relation to that confinement.

A notice of intention to terminate the contract of employment given to a female worker during her compulsory maternity leave(6 weeks after confinement) and during the maximum extension of this leave in case of illness medically certified as arising out of confinement 6 more weeks, is void and null.
Employment Act §116
Employment (Maximum Period of Employment Security Arising from Pregnancy) Order §2

Burden of proof

Not provided.
Employment Act §113-119

Guaranteed right to return to work

Notice of dismissal may not be given during maternity leave or during any extension for a maximum of six weeks, nor at such a time that the notice would expire during maternity leave.
Employment Act §121(1)
Employment (Maximum Period of Employment Security Arising from Pregnancy) Order §2

Results generated on: 27th November 2014 at 14:09:51.
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