Parental Leave Explained
Published in Labour Law · 5 July 2022
Parental Leave, Adoption Leave, Commissioning Parent Leave, these are the new types of leave granted to employees but what are the rules about using these types of leave?
In our previous article we mentioned the different types of leave that can be used by an employee as detailed in the Basic Conditions of Employment Act 75 of 1997 (BCEA). We mentioned and briefly explained about Annual Leave, Sick Leave, Family Responsibility Leave and Maternity Leave. In this article we will describe and briefly explain the new types of leave introduced with the Labour Laws Amendments in 2019 so that you can plan your business or family life accordingly.
As of January 2019, the different types of leave recognised by our law are as follows:
Annual Leave, Sick Leave, Family Responsibility Leave, Maternity Leave, Parental Leave, Adoption Leave and Commissioning Parent Leave. All employees are entitled to leave except employees that work less than 24 hours per month for an employer.
Parental Leave – This type of leave can be taken by the parent of a child when the child is born or on the date of adoption of a child. Employees are entitled to 10 unpaid days of parental leave per annum.
Adoption Leave – An employee who is an adoptive parent may apply for 10 consecutive weeks of unpaid leave that begins at the adoption of a child by that employee. Should there be 2 adoptive parents, only 1 parent is entitled to adoption leave and the other parent may take parental leave.
Commissioning Parent Leave – This is the same as adoption leave but it applies to an employee who is a commissioning parent in a surrogacy agreement. A surrogacy agreement takes place to allow a surrogate mother to carry a child on behalf of another until childbirth and then hand over the child after birth to the commissioning parents, the couple receiving the child.
Parental Leave will be a gift for many new fathers who will be relieved that they do not have to deplete their Annual Leave to spend a few extra days with their new-born. Parental Leave is therefore popularly referred to as Paternity Leave.
In order to lawfully utilise Parental, Adoption or Commissioning Parent Leave, the employee must provide a 30 days’ notice in writing to the employer that contains the expected dates of commencement of the leave where possible as well as the expected date of return. There will be scenarios such as premature childbirth where early notification will not always be possible and in these situations the notification should be done as soon as practicably possible.
In day-to-day practice, the different types of leave and their calculations can often become daunting and frustrating, leading to employees abusing the leave allowances and employers making unnecessary payments. This is why the first step to effectively manage business operations should be to draft, sign and implement a comprehensive employment contract that contains a detailed disciplinary code, company policy and procedure document.
This article does not constitute legal advice and is based on the author’s interpretation of legislation and case law. Book a consult for legal advice or assistance pertaining to your specific matter.