EMPLOYEES SET FOR ADDITIONAL FORMS OF LEAVE

 
In an amendment to the Basic Conditions of Employment Act 75 of 1997 published under the Labour Laws Amendment Act 10 of 2018, employees have been granted new forms of leave over and above the existing provisions related to annual leave, sick leave and family responsibility leave.
 
The new leave encompasses parental leave, adoptive parent leave and commissioning parent leave in respect of surrogate motherhood agreements.
 
All employees are entitled to the new leave and it is applicable from the 1st January 2019.
 
The new leave is not paid for by the employer with provision being made for payment thereof through the Unemployment Insurance Fund.
 
PARENTAL LEAVE
 
An employee who is a parent of a child is entitled to at least 10 consecutive days parental leave.
 
The leave may commence either on:

  • the day the child is born; or
  • the date an order of adoption is granted; or
  • the date the child is placed in the care of the adoptive parent by a court pending the finalisation of the adoption.

 An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to:

  • commence parental leave; and
  • return to work after parental leave.

Notification must be given at least one month before the employee’s child is expected to be born or the date that the adoption order is granted, or the child is placed in the care of a prospective adoptive parent pending the finalisation of an adoption in respect of that child.
 
If it is not reasonably practicable provide the necessary notice, notice must be given as soon as is reasonably practicable.
 
ADOPTION LEAVE
 
An employee who is an adoptive parent of a child below the age of two is entitled to 10 consecutive weeks leave or the parental leave referred to above.
 
An employee may commence adoption leave either on: 

  • the date the adoption order is granted; or
  • the date that the child is placed in the care of a prospective adoptive parent by the court, pending the finalisation of an adoption order in respect of that child, whichever date occurs first.

An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to

  • commence adoption leave; and
  • return to work after adoption leave.

Notification must be given at least one month before the employee intends to commence with the leave or if it is not reasonably practicable to do so, as soon as is reasonably practicable.
 
If two parents are granted the order of adoption, one parent may apply for adoptive leave whilst the other may apply for the parental leave referred to above. The election is for the parents to make. The same principle applies when a court has ordered that a child is to be placed in the care of two parents pending the finalisation of the adoption process.
 
COMMISSIONING PARENT LEAVE (SURROGATE LEAVE)
 
An employee, who is a commissioning parent in a surrogate motherhood agreement is entitled to:

  • commissioning parental leave of at least ten weeks consecutively; or
  • the parental leave referred to above.

An employee may commence commissioning parental leave on the date the child is born.
 
An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to:

  • commence commissioning parental leave; and
  • return to work after commissioning parental leave.

Notification must be given at least one month before a child is expected to be born or if it is not reasonably practicable to do so, as soon as is reasonably practicable.
 
If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave.
 
A commissioning parent has the meaning assigned to it in section 1 of the Children’s Act, 2005 (Act No. 38 of 2005) and surrogate motherhood agreement has the meaning assigned to it in section 1 of the Children’s Act, 2005 (Act No. 38 of 2005).
 
 FAMILY RESPONSIBLE LEAVE
 
The provision relating to family responsibility leave has been amended and paragraph 2 (a) has been deleted. Paragraph 2 (a) states that the employee is entitled to family responsibility leave when the employees’ child’s is born. This has been removed. The remaining provisions of family responsibility leave remain unchanged.
 
For more information on the above or any assistance with employment law issues please feel free to contact us.
 
Regards
 
Fred Joubert 

fred@dmrlaw.co.za 

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