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Parental leave

By Jan du Toit, Senior Consultant, SA Labour Guide

 

On 28 November 2018, the president assented to the Labour Laws Amendment Act of 2018, leading to much confusion. This is largely due to other amendments to the Basic Conditions of Employment Act becoming effective on 1 January 2019.

 

The Labour Laws Amendment Act will effectively again amend the Basic Conditions of Employment Act to provide for, inter-alia, the much-anticipated parental leave. It is therefore important to understand that parental leave, as explained in this article, is not yet effective and it is expected that an effective date will only be announced by the president later this year.

 

When the Labour Laws Amendment Act becomes effective, it will subsequently amend section 27 of the Basic Conditions of Employment Act, in so far as it relates to family responsibility leave when an employee's child is born. The three days family responsibility leave that employees are currently entitled to upon the birth of a child, will be replaced by parental leave as per the Labour Laws Amendment Act of 2018. It is important to note that the remainder of section 27 of the Basic Conditions of Employment Act will remain intact, entitling employees to family responsibility leave when a child is sick (younger than 18 years of age)or alternatively upon the death of a family member as listed.

 

In terms of the Labour Laws Amendment Act an employee will be entitled to 10 days parental leave upon the birth of the employee's child. Parental leave may also be applicable in circumstances where an employee legally adopts a child or when a child is placed by a court in the care of a prospective adoptive parent. In this regard one must consider the definitions of adoptive and prospective adoptive parents. A “prospective adoptive” parent means a person who complies with the requirements set out in the in the Children's Act of 2005. A prospective adoptive parent therefore means:

 

  • a person that is fit and proper to be entrusted with full parental responsibilities;

  • that is willing and able to undertake, exercise and maintain those responsibilities;

  • that is older than 18 years;

  • and that has been properly assessed by an adoption social worker.

 

“Adoptive parent” means a person who has adopted a child in terms of any law.

 

Based on the aforementioned it is evident that both male and female employees may qualify for parental leave. However, if the employee gave birth to the child, she will not qualify for parental leave. Such employee will be entitled to 4 months unpaid maternity leave. Female employees may also qualify for parental leave in circumstances where such employee is one of the adoptive parents or a prospective adoptive parents as per the definitions above. For the purposes of adoption leave, the child must be younger than two years of age.

 

Adoptive parental leave will entitle one of the parents to 10 weeks consecutive unpaid adoption leave. If an adoption order is made in respect of two adoptive parents, only one may apply for adoption leave and the other for parental leave. Parental leave will entitle an employee to 10 consecutive days leave:

 

  • after the employee's child has been born

  • an adoption order has been granted by a competent court, or

  • a child has been placed in the care of the prospective adoptive parent.

 

As indicated, such leave will be unpaid and employees will therefore have to submit claims to the Unemployment Insurance Fund to qualify for payment during the periods of absence from work. In terms of the Labour Laws Amendment Act an employee will be entitled to 66% of his or her regular earnings subject to the maximum income threshold as per the Unemployment Insurance Act. Contributors will not be entitled to be paid from the Unemployment Insurance Fund for parental leave if they were not employed and contributing to the fund during the 13 weeks prior to applying for such benefit. The same will be applicable for adoption leave.

 

A further requirement in terms of the Amendment Act is that an employee must notify his or her employer in writing of the date that such leave is to commence and when the employee will return to work. Such notice must be given one month before:

 

  • the child is expected to be born,

  • or the date that the adoption order will be granted, or

  • when the child is placed in the care of a prospective adoptive parent.

 

It is also important to note that in order to qualify for the payment of benefits from the Unemployment Insurance Fund, a male employee will have to adduce proof of him being the father of the child by virtue of a birth certificate with his name and surname appearing on it.

 

Employers will therefore be required to reconsider their current policies and to ensure that they are compliant with the Labour laws Amendment Act when it becomes effective.

 

Jan du Toit is available to assist employers with the formulation of policies in line with provisions of the Labour Laws Amendment Act of 2018.

 

 

 

 

 

 

 

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