PARENTAL LEAVE (Paternity leave, Adoption leave and Surrogacy leave)

labour law parental leave Dec 31, 2019
 

 

[UPDATE: In terms of GGR 42925 of 23 December 2019, all categories of parental leave are in operation from 1 January 2020, by way of an amendment to section 25 of the BCEA.]

These new categories of leave have been introduced during 2019, to make provision for longer paternity leave, but also specifically for parents in non-traditional relationships; or who may be adopting or have surrogacy arrangement.

All of this leave is unpaid (just like maternity leave), unless the employer has a policy to provide for (part-) payment during these periods of leave, or it is governed by a Collective Agreement. The parents can however claim UIF benefits, subject to certain conditions.

Where an employee is one of two parents who both qualify for adoption leave or commissioning surrogacy leave, not both of them will be able to apply for or claim UIF benefits for that type of leave. The parent who does not take the adoption- or surrogacy leave, will be eligible for parental leave. The parents will have to exercise the choice.

Note therefore that both male and female employees could potentially qualify for parental leave in given circumstances - however a female employee who gave birth to the child, will qualify for maternity leave (4 months) and not parental leave.

Parental leave (includes paternity leave)

  • An employee who is a parent of a child is entitled to at least 10 consecutive days’ parental leave. This includes paternity leave if the employee has been registered as the child's father in terms of the Births and Deaths Registration Act. 
  • The leave commences when the employee’s child is born; or in the case of adoption, when the adoption order is granted or the child is placed in the care of the adoptive parent by the court pending finalisation of an adoption order in respect of that child.
  • Conditions for payment of parental leave benefits: The employee is not entitled to claim UIF benefits unless he/she was in employment for at least 13 weeks before the date of application for parental benefits. If the employee is getting full or partial payment from the employer during a period of parental leave, s/he can only claim UIF benefits for the difference between that and the amount of his/her normal remuneration. 
  • The application must be made on the prescribed forms at an employment office, within 12 months after the birth of the child / the applicable day of adoption leave commencing.

Adoption leave

  • An employee who is an adoptive parent of a child below the age of two is, entitled to either
    • adoption leave of at least 10 consecutive weeks; or
    • parental leave of 10 days as referred to above.
  • An employee may commence adoption/parental leave on the date on which–
    • the adoption order is granted;
    • the child is placed in the care of a prospective adoptive parent by a competent court, whichever date occurs first.
  • If an adoption order is made in respect of two adoptive parents, one of them may apply for Adoption Leave and the other adoptive parent may apply for the Parental Leave.

Commissioning parental (surrogacy) leave

  • An employee who is a commissioning parent in a surrogacy agreement is entitled to –
    • Commissioning Parental Leave of at least 10 consecutive weeks; or
    • Parental Leave of 10 days as referred to above.
  • An employee may commence Commissioning Parental Leave on the date that a child is born by virtue of a surrogate motherhood agreement.
  • If a surrogate motherhood agreement involves two commissioning parents, one of them may apply for Commissioning Parental Leave and the other commissioning parent may apply for Parental Leave.

 

FAMILY RESPONSIBILITY LEAVE

This section will now change to exclude paternity leave (i.e. “when an employee’s child is born”), as paternity leave will now fall under the new Parental Leave and no longer be part of this section.

The amended clause will now read to apply as follows:

Three working days’ paid leave (total) per year for any of the following:

  • death of immediate family member;
  • when the employee’s child is sick.

[The employee may also take this leave in half-days.]

This leave entitlement applies only to employees who have been employed for longer than 4 months; and who work on at least 4 days a week for the employer.

The employer can require proof of the event before the paid leave is granted.

 

Download a summary of the provisions here.

 

© Judith Griessel

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