Sunday 20 October 2019

What rules do I have to follow to ensure I am complying with maternity leave legislation?

When the pregnancy is confirmed, staff may take reasonable time off for medical visits Stock image
When the pregnancy is confirmed, staff may take reasonable time off for medical visits Stock image

Caroline McEnery

Q: I have an employee who just informed me she is pregnant. She has given me a letter from her doctor confirming her due date is May 25, 2019. I have never had an employee who will be going on maternity leave so what advice can you give me to ensure I am compliant?

A: The area of maternity leave is highly protected in Ireland therefore it is great you are aware that you need to follow legislation strictly here. In Ireland, maternity leave is covered by the Maternity Protection Acts 1994 and 2004 and Maternity Protection (Health and Safety Leave Remuneration) Regulations, SI 20/1995. Your employee is covered by this legislation and so she is entitled to 26 weeks of maternity leave with the option of taking an additional period of 16 weeks unpaid. You, as the employer, are not obliged to pay maternity leave.

Your Policy: Firstly, you must ensure that your company handbook has a detailed policy that covers Maternity Leave.

This will help you and your employee understand what is expected from both parties.

Once the pregnancy is confirmed by the medical cert your employee may take reasonable time off for medical visits connected with the pregnancy.

There is no maximum or minimum amount of time off specified for these visits, it is simply as much time off as is necessary to attend each visit.

Do ask your employee to provide you with medical evidence of these appointments giving two weeks' notice to ensure business requirements are met in-house. The employee is entitled to be paid while keeping these medical appointments.

Health & Safety: You have a duty to carry out a risk assessment with each and every pregnant employee you may have in the future. If there are risks, these should be either removed if possible or the employee moved away from them.

Starting the Leave: Maternity leave must commence at least two weeks before the end of the expected due date.

For example, if your employee gives you a due date of 25 December, 2019, she will start her maternity leave at least two weeks in advance which is December 11, 2019. The last day of work will be December 10, 2018. The statutory Maternity Leave, given she takes the full entitlement, will be due to end on June 11, 2019. The return to work date is the June 12, 2019.

Premature Birth: In the event of an unfortunate premature birth, maternity leave will commence immediately from the date of birth. The time between the birth and the date of birth as per the original medical cert will be additional to the statutory 26 weeks of maternity leave for your employee.

Additional Maternity Leave: Your employee is entitled to an additional period of 16 weeks' leave, after her 26 weeks, which must be taken immediately following the maternity leave 16-week period.

There is no payment from Social Welfare during this 16-week period. She must inform you of her intention to take such leave no later than four weeks before the end of the maternity leave period.

Given the example above, this would mean she will have to give you notice no later than May 14, 2019. If the employee opted to take the additional maternity leave of 16 weeks' unpaid, this would commence on June 11, 2019 with the finish date October 1 2019 and the return to work date October 2, 2019.

Employment Rights: Your employee will accrue annual leave and public holidays, during maternity leave, as if she was still in work.

Return To Work: Your employee may return to work at any time from four weeks after the date of birth.

On her return, your team member has the right to return to work to do the same job, under the same contract of employment, in the same conditions or not less favourable than before the leave was taken.

If the above is not possible or practical she must be offered a suitable alternative under a new contract. We would urge you to seek best practice advice on this if there is a potential that this may occur as maternity leave is so highly protected.

Caroline McEnery, managing director of The HR Suite is also author of The Art of Asking the Right Questions, a manager's toolkit on all HR-related tips to proactively manage your team

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