By Kobus Erasmus and Mashooda Patel

Previously employees who had children or planned on starting with a family had very limited leave options available to them in relation to maternity and family responsibility leave.

The brief details of these categories of leave are as follows:

In terms of Section 25 of the Basic Conditions of Employment Act, 1997 (BCEA), a female employee is entitled to at least 4 (four) consecutive months maternity leave. Such leave may be taken at any time from 4 (four) weeks before the expected date and the employee may not return to work sooner than 6 (six) weeks after the birth of her child (except if a medical practitioner certifies otherwise). This leave is only available to female employees, is unpaid but the employee may claim certain benefits from the Unemployment Insurance Fund (UIF)

Section 27 of the BCEA in turn provide that all employees (male & female) are entitled to 3 (three) days paid family responsibility leave per annum/year. This type of leave is however subject to certain conditions namely that the employee must have been in employment for longer than 4 (four) months and must work for at least 4 (four) days for that employer. It can also only be used when the employee’s child is born, when the child is sick or in the unfortunate situation where an employee’s child die. Although the employee is entitled to be paid by the employer for taking this type of leave, it is clear that the option of taking such leave is subject to certain strict conditions and limited to very specific circumstances.

This position all changed for the better when the Labour Laws Amendment Act 2018 which was a Private Member’s Bill and the brainchild of the ACDP, was adopted and promulgated. The Bill was drafted in line with their policy on family values, the Green Paper on Family and by concerned fathers and amended the BCEA by introducing 3 (three) new categories of leave namely:

•         Parental Leave (Section 25A)

An employee, who is a parent of a child, is now entitled to at least ten consecutive days’ parental leave. The parental leave may start on the day that the employee’s child is born or the earlier date between the date that the adoption order is granted, or the date that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalization of an adoption order in respect of that child.

•         Adoption Leave (Section 25B)

An employee, who is an adoptive parent of a child who is below the age of two, is also entitled to adoption leave of at least ten consecutive weeks or the parental leave referred to above.

•         Commissioning Parental Leave (Section 25C)

The last category of leave introduced provides that 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 to the parental leave referred to above.

It should be noted that an employee is not entitled to payment by his/her employer when taking these new categories of leave but would have to claim the prescribed benefits from the UIF, which will be paid at a rate of 66% of the earnings of the beneficiary at the date of application, subject to the maximum income threshold.

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