BY Balindile Shezi AND Tshegofatso Malope
New year, new leave: the much anticipated parental leave provisions are now in force
The new parental leave provisions provided for in the South African Labour Laws Amendment Act, 2018 and incorporated into the Basic Conditions of Employment Act, 1997 (the “BCEA”) are finally in force. As of 1 January 2020, employees are entitled to three additional forms of leave ie, parental leave, adoption leave and commissioning parental leave.
In terms of section 25A of the BCEA, an employee who is a parent of a child is entitled to at least 10 consecutive days of parental leave, which may commence on the day that the employee’s child is born, the date that the adoption order is granted or the date that the child is placed in the care of a prospective adoptive parent by a competent court, whichever date occurs first.
Section 25B gives an employee who is an adoptive parent of a child below the age of two the right to adoption leave of at least 10 consecutive weeks or parental leave in terms of section 25A.
Commissioning parental leave
In terms of section 25C of the BCEA, employees who are commissioning parents in a surrogate motherhood agreement are entitled to either commissioning parental leave of at least 10 consecutive weeks or parental leave of at least 10 consecutive days. The commissioning parents can elect which of the parents will take which leave.
This means that in a two-parent household, where the parents are expecting a child, the parent who gives birth will be able to take maternity leave of at least four months and the other parent will be entitled to at least 10 consecutive days parental leave. In the case of adoptions, the one parent can now take at least 10 consecutive weeks’ adoption leave while the other parent will be able to take at least 10 consecutive days parental leave. The adopting parents can elect which partner will take which form of leave.
Parental, adoption and commissioning parental leave will be unpaid but employees can submit claims to the Unemployment Insurance Fund to qualify for payment of these benefits. It is important to note that the family responsibility leave provisions (save for leave when a child is born) remain intact and employees may take family responsibility leave in instances where the employee’s child is sick or in the event of a death in the family.
In light of these changes to the law, employers are encouraged to review their outdated policies and employee contracts in order to ensure that they remain compliant with recent labour law amendments.