On January 1st, 2020, new forms of leave were inserted into the Labour Amendment Act and the Basic Conditions of Employment (BCEA) Act 75 of 1997. This amendment to both Act’s give employees who become parents an opportunity to take parental leave, commissioning parental leave or adoptive leave, which was previously not available. Below we deep dive into the new leave terms and how this will affect both the employee and the employer.
Why were these amendments made?
The change in parental leave stems from South Africa wanting to align with global standards relating to leave and the birth or adoption of a child. The purpose of this new parental leave structure is to provide employees with an opportunity to bond with their newborn, newly adopted or newly placed child, which is essential in the development of the family structure.
Previously, new parents and male employees, (not mothers), had to take their three days of family responsibility leave for their child’s birth. This new leave structure extends the number of days parents can take when their child is born or when an adoptive child is placed into the adoptive or prospective adoptive parents’ care.
What are the new amended parental leave terms?
There were three main amendments made to the Labour Laws Amendment Act (LLAA) and the Basic Conditions of Employment Act (BCEA) relating to parental leave.
In terms of these Act’s the following leave days and benefits apply:
Parental leave as amended in Section 25A of BCEA – 10 Consecutive Days of leave
An employee, who is a parent of a child, is entitled to at least 10 consecutive days of parental leave. These parental leave laws will commence on the infant’s date of birth, the date of an adoption order being granted or the date that a child is placed in the care of a prospective adoptive parent pending the final adoption order. This amendment is not gender specific, and any employee, regardless of gender, may qualify for parental leave depending on their circumstances. Parental leave, therefore, also replaces paternity leave in South Africa, which used to be taken as the three-day family responsibility leave. If an employee gives birth to a child, they will not qualify for parental leave as they are entitled to four months maternity leave, which is unpaid. Employees will not be able to take family responsibility leave in addition to this leave.
Adopting parent/s as amended in Section 25B of BCEA – 10 consecutive weeks of leave
An employee who is an adoptive parent is entitled to at least 10 consecutive weeks leave from the date of an adoption order being granted or the date that the child is placed in their care pending the finalisation of an adoption order. In the case of two adoptive parents, only one parent will be eligible for the adoption leave. The other will be able to apply for the 10 day parental leave mentioned above.
Commissioning parent/s as amended in Section 25C of BCEA – 10 consecutive weeks of leave
An employee who is a commissioning parent in a surrogacy agreement is entitled to at least 10 consecutive weeks of commissioning parent leave, which may begin on the infant’s birth date. In the case of two commissioning parents in a surrogate motherhood agreement, only one is entitled to the commissioning parental leave, whereas the other will be required to apply for parental leave, which is limited to 10 days. The amendments do not make provision for any leave that the surrogate mother may take. While she would probably not be entitled to the standard four months’ maternity leave, she would in all likelihood be entitled to at least six weeks’ maternity leave as per Section 25(3) of the BCEA.
Elements that employer’s and employee’s need to take into account with the new amendments
There are many elements that both the employee and employer will need to take into account in relation to these new leave amendments. These include:
1. Written notice:
An employee must give at least one month’s written notice for their parental leave. This notice should include the expected date of birth as well as when the leave will come into effect and when the employee will return to work. In the case of adoption, the employee will need to provide the date on which the adoption order is granted or the day that the court places the child in the prospective adoptive parent’s care. If an employee cannot give notice due to preterm labour, emergency placement, etc., the employee must notify the employer as soon as reasonably possible.
2. Unpaid or paid leave:
All of the above mentioned leave amendments and categories are unpaid, as is the case for maternity leave. In this case, benefits may be claimed from the Unemployment Insurance Fund (UIF). The UIF benefits payable will be 66% of the employee’s earnings, subject to the maximum income threshold. For benefit claims, this is currently up to R17 712.00 per month. Claims for parental benefits must be made within 12 months after the due date of the child’s birth, adoption order or competent court order in relation to prospective adoptive parents.
3. Family Responsibility Leave:
As mentioned above, employees are no longer entitled to take paid family responsibility leave when their child is born, as this is now covered by parental leave. The employer would need to advise employees of this change and attach such addendum to their employment contracts. Employment contract amendments employers will need to amend employee’s employment contracts to include these new leave amendments. It is also up to the employer to ensure that employees are aware of these terms and that they are required to provide a month’s written notice when taking this leave.
The above mentioned leave amendments ensure that employees are granted adequate time to bond with their child. These new leave types are a real improvement from the original paternity leave clauses in South Africa. Not only are new parents given an opportunity to be there for their children in those vital first few days, but these clauses are more inclusive of different types of family structures. This new leave structure does affect both the employer and employee, but it is up to the employer to ensure that their employment contracts are up to date and that the employees know what process to follow. For more on labour relations law and advice,