Understanding Parental Leave in South Africa

For some time, section 27 of the Basic Conditions Employment Act (“BCEA”) entitled employees to a minimum of four days of family responsibility leave in certain circumstances, for example, when an employee’s child is born. In terms of the recent amendments to the BCEA, the provision entitling an employee to family responsibility leave on the birth of an employee’s child has been repealed (leaving the remainder of section 27 intact).

The BCEA has been amended to introduce provisions relating to parental leave, adoption leave and commissioning parental leave, effective 1 January 2020.

What do the amendments provide?

Parental leave – also referred to as paternity leave

An employee, who is a parent of a child is entitled to 10 consecutive days of parental leave.  They are entitled to take this leave on the first occurring date between the date the child is born; the date an adoption order is granted; or the date that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order.

An employee who intends to take parental leave must submit at least one calendar month’s written notice to their employer of the date on which they intend to commence parental leave and when they plan to return to work, known as “parental leave notice”.

However, an employee is not required to submit the parental leave notice if the employee is unable to do so. It is arguable that if an employee’s child is born prematurely, more than a calendar month prior to the expected date of birth, the employee is not required to submit parental leave notice, but rather is entitled to it.

An employee is also not required to provide parental leave notice if it is not reasonably possible to do so.  It is arguable that this may occur if an employee is abroad with no means (such as no internet connection – heaven forbid) to submit the parental leave notice in time (i.e. at least one calendar month before the employee intends to commence parental leave).  The employee is, however, required to notify the employer in writing of the date that they intend to commence parental leave and return to work as soon as it is reasonably possible for them to do so.

Adoption leave

An employee who is an adoptive parent of a child below the age of two is entitled to 10 consecutive weeks of leave or the parental leave referred to above.

The employee may commence adoption leave on the first occurring date between the date the adoption order is granted or the date that a competent court places such a child in the care of an employee who is a prospective adoptive parent, pending the finalisation of an adoption order in respect of that child.

An employee who intends to take adoption leave must submit at least one calendar month’s written notice to his or her employer of the date on which they intend to commence adoption leave and return to work thereafter, known as “adoption leave notice”.

The employee is not required to submit adoption leave notice if they are unable to do so or if it is not reasonably possible to do so.  However, if it is not reasonably possible for the employee to do so, they are required to provide written notice to their employer of the date that they intend to commence adoption leave and return to work, as soon it is reasonably possible to do so.

If an adoption order is made in respect of two adoptive parents, or if a competent court orders that a child is placed in the care of two prospective adoptive parents, pending the finalisation of an adoption order in respect of that child, the employee may either take parental leave or adoption leave, provided that this election is exercised at the option of the two adoptive parents. In other words, an employee in these circumstances may opt for parental leave or adoption leave (not both).

Commissioning parental leave

An employee who enters into a surrogate motherhood agreement envisaged in terms of the Children’s Act is entitled to 10 consecutive weeks of leave or the parental leave referred to above.

In terms of the Children’s Act, a surrogate motherhood agreement is an arrangement whereby an adult female is artificially fertilised for the purpose of bearing a child for a parent (in this case the employee seeking to take commissioning parental leave) and hands over such a child to the parent upon the birth of a child with the intention that the child becomes the legitimate child of the parent. The parent whom the child is handed over to, is referred to as the commissioning parent.

The employee may commence commissioning parental leave on the date that the child is born.

An employee who intends to take commissioning parental leave must submit at least one calendar month’s written notification to his or her employer on the date which they intend to commence commissioning parental leave and when they plan to return to work after commissioning parental leave, known as “the commissioning parental leave notice”.

As with parental and adoption leave, the employee is not required to provide the commissioning parental leave notice to the employer if the employee is unable to do so, or if it is not reasonably possible to do so.

If it is not reasonably possible for the employee to do so, the employee is required to provide written notification to the employer of the date that they intend to commence commissioning parental leave and return to work after commissioning parental leave, as soon it is reasonably possible to do so.

If a surrogate motherhood agreement has two commissioning parents, the employee may either take parental leave or commissioning parental leave, provided that this election is exercised at the option of the two commissioning parents.

Is parental, adoptive, and commissioning parental leave paid or unpaid in terms of the BCEA amendments?

In terms of the BCEA amendments, these types of leave are unpaid. However, employers may opt to make all, or a portion of  such leave paid, as is often the case with maternity leave.

Qualifying employees in terms of the Unemployment Insurance Act (“UIA”) may nevertheless apply for payment benefits in terms of the UIA.  However, apart from claiming parental leave benefits, the provisions of the UIA have not yet been amended to process claims for adoption leave and commissioning parental leave.

It is unclear when the UIA will be amended to cater to such claims. Furthermore, although the UIA has been amended to allow employees to claim parental leave benefits, the amendments which deal with the percentage payable in respect of such claims are not yet in force. This may give rise to practical difficulties.

Practical tips

Employers are required to in terms of section 29 of the BCEA provide written particulars of employment, which includes the leave an employee is entitled to. The written particulars are usually contained in employment contracts and/or employment policies.

Section 29 of the BCEA also provides that if there is a change in an employee’s leave entitlement (as would be the case here – by virtue of the aforesaid amendments), employers are required to revise the written particulars and supply employees with a copy of the document reflecting the change.

Accordingly, and depending on the circumstances, it may be appropriate for employers to seek to amend employment contracts and/or update employment policies to reflect the leave entitlements considering the recent BCEA amendments.

Depending on the wording of employment contracts or circumstances it is possible that an employee may be entitled to paid family responsibility leave if an employee’s child is born, notwithstanding that the amendments to section 27 no longer entitle employees to such leave (as touched on above). It may, therefore, be worthwhile for employers to seek appropriate amendments to employment contracts in this regard.  It is important to bear in mind that any amendment to an employment contract requires the consent of the employee.

This article was prepared by Irshaad Savant, a Senior Associate, and Thandeka Mhlongo, Associate, both practicing at Adams & Adams employment law department.

For any queries, please contact one of our team members.

Please note that this article serves only as a guideline and that specialist legal advice should be sought where appropriate.

IRSHAAD SAVANT

Senior Associate
Attorney

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THANDEKA MHLONGO

Associate
Attorney

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ASLAM PATEL

Associate
Attorney

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