South Africa: Leave Law Amendments Are in Effect

By Melanie Kirsten Hart and Andi Michalow © Fasken January 14, 2020
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father holding his child

​As of Jan. 1, the much-anticipated amendments to South Africa's Basic Conditions of Employment Act, 1997 (BCEA) regarding the provisions of parental, adoption and commissioning parental leave have commenced. These provisions are summarized below.

Parental Leave

In accordance with Section 25A of the BCEA, an employee, who is a parent of a child, is now entitled to at least 10 consecutive days of parental leave.

An employee may commence parental leave on either the day that the employee's child is born; the date that an adoption order is granted; 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 for that child, whichever date occurs first; or if it is not reasonably practical to do so, as soon as is reasonably practical.

An employee is required to 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 from parental leave.

Such notification must be given at least one month before either the employee's child is expected to be born; the date that the adoption order is granted; 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 for that child, whichever date occurs first; or if it is not reasonably practical to do so, as soon as is reasonably practical.

Adoption Leave

Section 25B of the BCEA provides that an employee, who is an adoptive parent of a child who is below the age of two, is now entitled to adoption leave of at least 10 weeks consecutively or parental leave of at least 10 consecutive days.

An employee may commence adoption leave on the date that the adoption order is granted; or on 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 for that child, whichever date occurs first.

An employee is required to 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 from adoption leave.

Such notification must be given at least one month before the date that the adoption order is granted; 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 for that child, whichever date occurs first; or if it is not reasonably practical to do so, as soon as is reasonably practical.

If an adoption order is made for two adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for parental leave, provided that the selection of choice must be exercised at the option of the two prospective adoptive parents. The same is applicable if a competent court orders that a child be placed in the care of two prospective adoptive parents, pending the finalization of an adoption order for that child.

Commissioning Parental Leave

Section 25C of the BCEA provides that an employee, who is a commissioning parent in a surrogate motherhood agreement, is now entitled to commissioning parental leave of at least 10 weeks consecutively or parental leave of at least 10 consecutive days.

An employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.

An employee is required to 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 from commissioning parental leave. Such notification must be given at least one month before a child is expected to be born as a result of a surrogate motherhood agreement or if it is not reasonably practicable to do so, as soon as it reasonably practical.

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 parental leave, provided that the selection of choice must be exercised at the option of the two commissioning parents.

Parental Leave, Adoption Leave and Commissioning Parental Leave

The provisions relating to parental, adoption and commissioning parental leave are afforded to employees on an unpaid basis. Employees will, however, be entitled to claim parental, adoption and commissioning parental leave benefits from the Unemployment Insurance Fund.

The Way Forward

It is prudent and a best practice for employers to educate its employees on how they can use and access parental, adoption and commissioning parental leave and associated Unemployment Insurance Fund benefits.

Parental leave, adoption leave and commissioning parental leave needs to be considered by employers when updating employees' template contracts of employment and applicable policies. It is also important for employers to be aware of potential unfair discrimination claims by employees should employers apply these types of leave arbitrarily, inconsistently and unfairly in the workplace.

Melanie Kirsten Hart and Andi Michalow are attorneys with Fasken in Johannesburg. © 2020 Fasken. All rights reserved. Reposted with permission of Lexology.

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