Introduction to the Parental Leave Benefit

On 1 January 2020 the amendments to the Labour Laws Amendment Act 10 of 2018 (the Amendment Act), came into effect. The provisions of the amendment act, which relate to Parental Leave, provide that employees are now specifically entitled to Parental Leave, Adoption Leave and Commissioning Parental Leave. The purpose of the amendment act is to amend and extend the scope of the Basic Conditions of Employment Act (the BCEA) in that previously an expectant parent, other than the mother who gave birth to the newborn child, would normally only be entitled to take three days family responsibility leave in terms of Section 27(2)(a) of the BCEA. This often left fathers, non-primary caregivers, adoptive parents and commissioning parents of the child, in the unfortunate position where they are given very little time off to spend with their child and were often required to utilise their annual leave or apply for unpaid leave. It is for this reason that the new amendments relating to parental leave are to be regarded as a milestone development as employees can now be granted either a minimum of 10 days leave or 10 weeks leave, depending on the nature of the leave sought and who is to be regarded as the child’s primary caregiver.

The key provisions of the amendment act which relate to Parental Leave

Section 25A provides that an employee who is a parent to a child is entitled to at least 10 consecutive days parental leave which will commence upon the date of the child being born – or the date on which the adoption order is granted, or the date that the child has been placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order, whichever date occurs first.

Section 25B provides that an employee who is the parent of a child through adoption where the child is below the age of 2 years old, is entitled to at least 10 weeks consecutive leave alternatively if the employee is not regarded as the primary caregiver of the child, then the other parent would be entitled to 10 consecutive days parental leave as per Section 25A.

The amendment act also refers to Commissioning Parental Leave under Section 25C. A commissioning parent is defined in the Children’s Act 38 of 2005, as a person who enters into a surrogate motherhood agreement with a surrogate mother. A commissioning parent is entitled to 10 weeks parental leave where the commissioning parent is regarded as the primary caregiver and with regards to the other parent, they would be entitled to 10 days consecutive parental leave. The commissioning parental leave period would commence on the date of the child being born as a result of a surrogate motherhood agreement.

Parental Leave Benefits

As with maternity leave, benefits in terms of Section 25(7) of the BCEA, means that employees who are entitled to parental leave in terms of the amendment act will be able to claim for Unemployment Insurance Fund (UIF) benefits so long as the employee is a contributor in terms of the Unemployment Insurance Act of 2001 and satisfies the criteria as outlined under Section 26A of the amendment act. Therefore, there is no obligation by an employer to compensate an employee for his / her parental leave, unless there is a policy in the contract of employment which provides that the employer is to pay for parental leave benefits.

Employees are required to apply for UIF benefits within 12 months from the date of childbirth, or the date that a competent court grants the adoption order, or the date a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever date occurs first.

General requirements in order for an employee to be entitled to Parental Leave

The amendment act does detail the proof that is to be furnished to the Department of Labour before any parental leave benefit is paid to an employee. Similarly, such proof would be expected to be furnished to the employer before an employer grants any parental leave. In the circumstance where the employee is the parent to a child born by natural birth, the employee would be required to provide such proof of birth in terms of the Births and Deaths Registration Act 51 of 1992 such as a birth certificate.

In the circumstance where the employee is a parent to a child through adoption, the employee would be required to provide the employer with the adoption order or the court order confirming the placement of the child in the employee’s care. In the circumstance where the employee is a commissioning parent, the employee would be expected to provide the employer with the surrogate motherhood agreement in terms of Section 292 of the Children’s Act 38 of 2005.

Conclusion

Parental leave is a positive entitlement for employees who are gifted with the birth of a child or the welcoming of the child to their family through adoption. Employees and employers are to take heed of the fact that parental leave is still subject to the requirements as outlined in the Unemployment Insurance Act, should an employee wish to claim for UIF benefits. Employers are also advised to update their leave policies in order to outline what the requirements are before an employee can utilise his / her parental leave. Nonetheless, the amendment act is to be viewed as a milestone in terms of parental leave in South Africa.