New Parental Leave Laws
On 1 January 2020, Sections 25A, 25B, and 25C of the Basic Conditions of Employment Act (“BCEA”), which allow for entitlements for parental leave, adoption leave and commissioning parental leave, became law. From this date, all employees within the Republic of South Africa enjoy these entitlements and have a right to take these types of leave when applicable, save for employees working less than 24 hours in a month.
The entitlements are as follows:
“Parental leave” is the period of 10 consecutive days owed to an employee upon the birth or adoption of his/her child.
“Adoption leave” is the period of 10 consecutive weeks owed to an employee upon the adoption of his/her child. Where two persons adopt a child jointly, only one may take adoption leave and the other may take parental leave.
“Commissioning parental leave” is the period of 10 consecutive weeks owed to an employee upon the birth of his/her child through the use of commissioning a surrogate. Where two persons have jointly commissioned a surrogate, only one may take commissioning parental leave and the other may take parental leave.
All new leave entitlements are unpaid by the employer unless it elects to remunerate an employee during these periods. This is not required, but rather a choice for each individual business. Where the period is not paid or is not paid fully by the employer, the employee is entitled to apply to the Unemployment Insurance (UI) Fund for benefits.
Most organisations have employment agreements that mirror the BCEA leave entitlements prior to the amendments commencing this year. In other words, they contain the old family responsibility leave entitlements (under the new laws, the BCEA no longer allows for family responsibility leave to be taken in the event of the birth of a child) and do not contain the new parental leave entitlements.
In terms of the new amendments, we believe that employers have two options:
Option One: Seek to implement the statutory minimum in relating to parental leave, being 10 unpaid consecutive days, though partial payment from the UI Fund; or
Option Two: Continue the current practice of allowing employees (subject to minimum four days per week and four months’ service) to receive three days paid parental leave, with any other time off to be via partial payment from the UI Fund. If you elect to take this step, it will mean that the employee has an entitlement to three days paid parental leave plus three days paid family responsibility leave, the latter now being restricted to family responsibility leave for sickness of a child or death of a family member.
Option Two may result in greater remuneration costs, but we do not believe that many employees eligible for the 10 consecutive days parental leave will want to engage in the administrative process of claiming from the UI Fund and it will also mean that there is no reduction in their contractual entitlements.
Our suggestion in terms of adoption leave and commissioning parental leave, which are much longer periods of leave, are that these forms of leave be unpaid other than via partial payment from the UI Fund.
For more information on the new parental leave laws, kindly contact Workplace Strategies at info@workplacestrategies.co.za.