In November 2018, the President signed the Labour Laws Amendment Act 10 of 2018 (LLAA) into law.
The LLAA dealt with new types of leave but was not effective in law as no commencement date for the legislation was announced. On 23 December 2019, the President announced the commencement date for parental leave, adoption leave and commissioning parental leave as 1 January 2020.
Below, we summarise the nature of these new leave entitlements and we provide some advice to employers as to what is required following the introduction of the new leave entitlements.
What are the new leave entitlements?
The LLAA introduces three new leave entitlements for employees: parental leave, adoption leave and commissioning parental leave. The LLAA provides that these leave entitlements are unpaid and qualifying employees are eligible to apply to the Unemployment Insurance Fund (UIF) for income replacement benefits during the leave period.
The new leave entitlements are formally housed under sections 25A, 25B and 25C of the Basic Conditions of Employment Act 75 of 1997 (BCEA).
There were also consequential amendments introduced in the Unemployment Insurance Act 63 of 2001 (UIA) in order to provide for the relevant income replacement benefits associated with the new leave entitlements.
How long are the leave periods?
Parental leave: an employee, who is a parent of a child, is entitled to 10 consecutive days’ parental leave. Parental leave can be taken from the day on which the child is born or on the date on which an adoption order is granted or on such day that the child is placed with the prospective adoptive parents, pending the finalisation of the adoption order.
Adoption leave: an employee who is an adoptive parent of a child who is below the age of two years is entitled to 10 consecutive weeks of adoption leave. Adoption leave can be taken from the date on which an adoption order is granted or on such day that the child is placed with the prospective adoptive parents, pending the finalisation of the adoption order. In cases where an adoption order is made or a prospective adoption order is pending in respect of two parents, one parent is entitled to take adoption leave and the other parent will be entitled to take parental leave.
Commissioning parental leave: an employee who is a commissioning parent in a surrogate motherhood agreement is entitled to 10 consecutive weeks of commissioning parental leave. Commissioning parental leave can be taken from the date on which the child is born. In cases where 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.
In summary, the leave periods are –
Parental leave
10 unpaid consecutive days
Adoption leave
10 unpaid consecutive weeks
Commissioning parental leave
10 unpaid consecutive weeks
It is important to remember that the new leave entitlements are unpaid. Employers who currently provide paid maternity leave to employees should consider whether they wish to make parental, adoption or commissioning parental leave a paid (or partially paid) entitlement.
UIF payments At this stage, the UIF system is able to process claims for employees who to take parental leave. The UIF system is currently not able to process claims for adoption leave and commissioning parental leave. The UIF has not provided any indication of when its system will be ready to process such claims.
Can an employee still request family responsibility leave at the birth of his or her child?
No, section 27 of the BCEA deals with family responsibility leave. This section has been amended to remove the provision of family responsibility leave for the birth of a child and it is now no longer possible for an employee to take family responsibility leave at the birth of his or her child.
The remainder of section 27 of the BCEA remains intact and employees are still permitted to use this particular leave entitlement in the remaining circumstances.
Next steps for employers
Given that the new leave entitlements are now effective in law, employers are well advised to review and amend their leave policies and/or contracts of employment.
The new leave entitlements is a positive step towards the achievement of gender equality in the workplace and also represent equal treatment for working parents who are members of the LGBTQI community.
Brett Abraham, Claire Gaul, Deon Visagie, Dhevarsha Ramjettan, Eugene Phajane, Johan Olivier, Kate Collier, Kenneth Coster, Kirsten Eiser, Lizle Louw, Mpumelelo Nxumalo, Nick Robb, Pamela Stein, Shane Johnson, all from Webber Wentzel.
