• Lawtons Africa

Are you a parent? Do you know what you are entitled to?

Authors: Lavery Modise – Consultant, Sibongiseni Masina & Faatimah Essack – Candidate Attorneys


Significant changes to employees’ entitlements to parental leave came into effect with the promulgation of the Labour Laws Amendment Act (LLAA) on 1 January 2020.


One such change is that an employee is no longer able to take paid family responsibility leave when his or her child is born.


Instead, the Basic Conditions of Employment Act 1997 (BCEA) has been amended by the LLAA to include parental leave, adoption leave and commissioning parental leave (surrogacy). The Unemployment Insurance Act 2001 (UIA) now provides for parental, adoptive and commissioning parental benefits, which can be claimed from the Unemployment Insurance Fund (UIF).



PARENTAL LEAVE AND ADOPTION LEAVE

Section 25A of the BCEA

An employee who is a parent of a child is entitled to parental leave of 10 consecutive days. Parental leave is only available to parents who are not entitled to maternity leave. An employee may commence parental leave on the day the child is born; or the date that the adoption order is granted; or the child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order, whichever date occurs first.


This provision replaces the family responsibility leave for the birth of a child provided in s27 of the BCEA, although the other reasons for the paid three days’ family responsibility leave (illness of a child, death of spouse, life partner, child, parents etc.) provided in the section remain in place.


Section 25B of the BCEA

An employee, who is an adoptive parent of a child below the age of two, is entitled to adoption leave of at least ten consecutive weeks; or parental leave.


An employee may commence adoption leave on the date that the adoption order is granted; or when a competent court places the child in the prospective adoptive parent’s care pending the final adoption order. In both instances, a court order is required.

In respect of two adoptive parents, one may apply for adoption leave and the other for parental leave. The choice is entirely between the respective parents.


Notification to an Employer

An employee must (when possible) notify his/her employer in writing at least one month (or as soon as reasonably practicable) before the date the child is expected to be born or the date of adoption (as outlined above), of the date:

  • They wish to commence the parental leave/adoption leave; and

  • When they will return to work after the relevant leave.

COMMISSIONING PARENTAL LEAVE

Section 25C of the BCEA

A commissioning parent in a surrogate motherhood agreement is entitled to commissioning parental leave of at least ten consecutive weeks, or parental leave. If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other may apply for parental leave, i.e. both cannot receive commissioning parental leave.


For a proper understanding of the aforementioned leave:

  • A “commissioning parent” is a person entering into a surrogate motherhood agreement with a surrogate mother.

  • A “surrogate motherhood agreement” is an agreement between a surrogate mother and commissioning parent in which it is agreed that the surrogate will be artificially inseminated for the purposes of bearing a child for the commissioning parent and in which the surrogate undertakes to hand over the child at birth or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent.

Notification to an Employer

An employee must (when possible) notify his/her employer in writing at least one month (or as soon as reasonably practicable) before a child is expected to be born as a result of a surrogate motherhood agreement, of the date:

  • They wish to commence the commissioning parental leave; and

  • When they will return to work after the commissioning parental leave.


Topical Questions that may arise from the new parental leave provisions are the following:


What practical measures can an employer implement to manage these new leave entitlements?

  1. Ensure that payroll and HR teams advise employees about the new benefits and are prepared to support employees with their UIF claims.

  2. Inform employees about the amendments and their new leave entitlements.

  3. Amend employment contracts and policy documents to align them with the new legislation. Employment contracts providing more benefits than stipulated in the legislation do not need to be changed, provided that all contracts correctly reflect the new minimum leave requirements.

  4. Ensure that the payroll system provides for the new types of leave.

  5. Ensure that leave application forms and employee self-service portals allow for employees to apply for the new types of leave.

  6. Applications for parental, adoption or commissioning parent leave are open to abuse where both parents apply to their respective employers for the same type of leave. In an attempt to avoid this abuse, employees should be required when applying for leave to indicated what type of leave their partner or spouse has applied for, and provide proof, before such leave is approved by the employer. This obligation must be included in the company’s leave policy.

  7. Employees must provide proof to the employer when applying for leave, i.e. birth certificate (to be supplied after the birth), court adoption order, surrogacy motherhood agreement. This obligation is also to be included in the company’s leave policy.

These amendments are progressive and may also present some new and interesting challenges in the work environment. Lawtons Africa is available to offer guidance and advice in overcoming these challenges.

Lawtons Africa is a South African law firm. With roots that grew out of seeds sown in down-town Johannesburg in 1892, our history features various changes and different names. Our team of lawyers, including directors, consultants, associates and candidate attorneys is highly qualified, market-recognised and skilled. For further information, visit www.lawtonsafrica.com

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