08 May Maternity Protection in the Workplace
Pregnancy and motherhood are often viewed as wonderful and exciting times in women’s lives. However, for many working women they can also be times of great vulnerability, generating concerns about health, time off, job security and career progression.
There are several laws in Trinidad and Tobago aimed at protecting the rights of mothers and expectant mothers. Chief among them is the Maternity Protection Act (‘MPA’). The Labour Inspectorate Unit of the Ministry of Labour is responsible for monitoring workplaces to ensure compliance with the MPA, while the Industrial Court has the exclusive jurisdiction to deal with claims and disputes arising from breaches of the Act. In addition to the MPA, provisions protecting working mothers can also found in the Occupational Safety and Health Act (‘OSHA’), the National Insurance Scheme (‘NIS’) and the discrimination regime established under the Equal Opportunity Act (‘EOA’).
Health, Safety And Welfare:
Under MPA Section 7(4) and (5) a pregnant employee is entitled to paid time off for prenatal medical appointments. However, in order to be eligible for this benefit the employee must, as of the expected date of confinement, have been continuously employed by her employer for a period of at least twelve months.
Under OSHA Section 6(9) an employer is required, where necessary, to adapt the working conditions of a pregnant employee to ensure that she is not involved in the use of, or exposed to, chemicals, substances or anything dangerous to the health of her unborn child or subjected to working conditions dangerous to the health of her unborn child. This may include assigning alternative work where available. This is, however, without prejudice to the employee’s right to ultimately return to her original job.
Under OSHA Section 6(11) an employer is prohibited from providing or permitting a pregnant or nursing employee to perform work that is hazardous to her health or the health of her child. Where necessary, an employer is obligated to provide suitable alternative work for a period of up to six months after birth, provided that the costs of same are not prohibitive.
At present, there are no laws expressly governing breastfeeding in the workplace.
Under MPA Section 9, a pregnant employee is entitled to fourteen weeks paid maternity leave at one full month’s pay and the balance at half pay. In order to be eligible for this benefit the employee must have been continuously employed by her employer for at least twelve months.
The employee is also entitled to claim a maternity benefit through NIS. This benefit is intended to cover the period of time during which the employer is only obliged to pay the employee at half pay, so that altogether the employee’s pay would remain whole. If there is any shortfall in the NIS maternity benefit, the employer is required to make up the difference.
An employee is entitled to extend her absence from work for:
- a period no more than twelve weeks on medical grounds. In this case, the employer is obliged to pay the employee half-pay for the first six weeks and no-pay for the next six weeks.
- a period of no more than four weeks for any non-medical reason. The employer is not obliged to pay the employee during this period.
Under MPA Section 7(c) a pregnant employee is entitled to resume work after maternity leave on terms no less favourable than those she enjoyed immediately prior to her leave.
The Industrial Court has held that the right to return to work is an unfettered one. This means that an employee cannot be terminated during her maternity leave, even for reasons unrelated to her pregnancy.
The right to return to work may extend even beyond the end of maternity leave. In the case of RSBD NO. 16 of 2013 OWTU and Kimberly-Clark (Trinidad) Limited, an employer conducted a restructuring exercise while the employee was on maternity leave, as a result of which her position was eliminated. She was retrenched six weeks after returning from maternity leave. The Industrial Court found that the employer’s restructuring exercise was genuine. However, although noting that the protection enshrined in MPA Section 7(c) was not intended to last in perpetuity, it held that termination after only six weeks could not be reasonable or within the intention of the architects of the MPA.
On the other hand, as with the other MPA benefits discussed in this Article, an employee must have been employed by her current employed for at least twelve months in order access the protection of MPA Section 7(c). Thus, in GSD 533 of 2017 CWU and Corpus Christi College of Occupational Education and Training, the Industrial Court noted that a pregnant employee terminated only three months into her employment had “absolutely no protection under the Maternity Protection Act”.
Career Progression and Discrimination:
MPA Section 20 provides that an employee on maternity leave shall not be deprived of an opportunity to be considered for any promotion for which she is eligible, and which may arise during her period of leave.
The EOA prohibits discrimination in employment – including with respect to the terms and conditions of employment such as salary and the way the employer affords access to opportunities for promotion, transfer or training or other benefits – on the basis of certain protected categories, namely sex, race, ethnicity, origin, religion, marital status and disability. Pregnancy is not a protected category under the EOA. However, discrimination on the basis of pregnancy may be subsumed under the protected category of ‘sex’. This approach is not without its challenges, as it may be difficult to establish discrimination in cases where policies apply equally to both men and women, but put working mothers or expectant mothers at a disadvantage. For example, in the case of E.O.T. No. 0002 OF 2017 Williams v Ministry of Rural Development and Local Government, a pregnant employee employed on a three month contract challenged her employer’s decision not to renew her contract while she proceeded on maternity leave. The Equal Opportunity noted that since the employer’s policy was that neither men nor women were entitled to any type of leave during the tenure of three month contracts, no issue of discrimination arose with respect to the grant of leave per se.
While the MPA and the EOA may provide some protection in very clear cut cases, the reality is that discrimination against working mothers can be more insidious. Employers and supervisors may suffer from unconscious biases, grounded in stereotypes and gender expectations, about the competence, availability and career ambitions of working mothers, a phenomenon known as ‘maternal wall bias’. The effect of these unconscious biases has been felt keenly during the pandemic, with many working mothers expected to assume a greater share of unpaid childcare and household responsibilities than their partners. While the laws of Trinidad and Tobago do offer some protections to working mothers, particularly in the areas of maternity leave and the right to return to work, cultural changes may also be needed to ensure equity in the workplace.
Disclaimer: This Document Provides General Guidance Only And Nothing In This Document Constitutes Legal Advice. Should You Require Specific Assistance, Please Contact Your Attorney-At-Law.
Catherine Ramnarine is a Partner at M. Hamel-Smith & Co. She can be reached at firstname.lastname@example.org