As of January 1st, here is the Employee Rights in terms of Parental Leave
The amendments to the Basic Conditions of Employment Act (BCEA) – which form the basis of employees’ right to parental, adoption and commissioning parental leave have now been promulgated. This means that employers are obliged to grant employees leave in terms of these provisions as from 1 January 2020.
How does it work?
Here is what you need to know about the different categories of parental leave:
Parental leave – 10 consecutive days
An employee who is a parent of a child will be entitled to 10 consecutive days’ parental leave. This applies irrespective of gender, which means it would include parents in same-sex relationships. Parents should take note of the comparative benefits, i.e. for mothers who give birth (maternity leave), a person who adopts a child (adoption leave) or a commissioning parent in a surrogate motherhood agreement (commissioning parental leave) – see below.
The current provisions of the BCEA regarding four months’ maternity leave remain unchanged (but with increased financial benefit – see below).
The introduction of parental leave effectively replaces the three days’ paid paternity leave previously provided for in the BCEA. (The family responsibility benefits associated with the illness of a child or the death of a close family member remain unchanged.)
Parental leave may commence on the day that the child is born.
The 10 consecutive days of parental leave are calendar days, not working days. For example, if the child is born on a Tuesday, the father may take leave from that Tuesday until the following Thursday.
Adoption leave – 10 consecutive weeks
The second category relates to the adoption of a child that is below the age of two.
A single adoptive parent is entitled to 10 consecutive weeks’ adoption leave. If there are two adoptive parents, only one would be entitled to 10 consecutive weeks’ adoption leave. However, the other adoptive parent would be entitled to 10 consecutive days’ normal parental leave (see above). It is up to the adoptive parents to decide who takes adoption leave and who takes normal parental leave.
Leave may commence on the day that the adoption order is granted, or the day that a competent court places the child in the care of a prospective adoptive parent.
Commissioning parental leave – 10 consecutive weeks
The third category of leave is the so-called commissioning parental leave that relates to surrogate motherhood. The commissioning parent who will primarily be responsible for looking after the child (primary commissioning parent) will be entitled to commissioning parental leave.
If there are two commissioning parents, they can choose: if the one takes commissioning parental leave, the other can take normal parental leave. The one who takes commissioning parental leave will be entitled to 10 consecutive weeks’ commissioning parental leave. The other parent would be entitled to 10 consecutive days’ normal parental leave.
In both cases, leave can commence on the date of the birth of the child.
The amendments do not make provision for any leave that may be taken by the surrogate mother. While she would probably not be entitled to the normal four months’ maternity leave, she would in all likelihood be entitled to at least six weeks’ maternity leave envisaged by section 25(3) of the BCEA.
The employee must give at least one month’s written notice of –
- the expected date of birth, as well as when the leave is due to commence
and when the employee will return to work; or
- in the case of adoption, the date on which the adoption order is granted or the day that a competent court places the child in the care of a prospective adoptive parent.
If for some reason or other, it is not possible for the employee to give such notice, the employee must notify the employer as soon as is reasonably practicable.
CONTACT CAPE LABOUR.
For more information on labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.
For more information or to Contact Cape Labour. You can find all of our relevant details here.