Editor’s note: the parental leave has changed in light of the recent judgement of Van Wyk and Others v The Minister of Employment and Labour, that all parents, regardless of their situation, enjoy four consecutive months of parental leave, to be shared as they see fit. See this article

In terms of recent changes to Basic Conditions of Employment Act (BCEA), from 1 January 2020, the BCEA makes provision for parental leave, adoption leave and commissioning parent leave (surrogacy arrangements).

Parental, adoption and commissioning parental leave will be unpaid but employees can submit claims to the Unemployment Insurance Fund to qualify for payment of these benefits.

Parental leave

In terms of section 25A of the BCEA, an employee, whether male or female, who is a parent of a child is entitled to at least 10 consecutive days of parental leave, which may commence on the day that the employee’s child is born.

This means that in a two-parent household, where the parents are expecting a child, the parent who gives birth will be able to take maternity leave of at least four months and the other parent will be entitled to at least 10 consecutive days parental leave.

Adoption leave

Section 25B gives an employee who is an adoptive parent of a child below the age of two the right to adoption leave of at least 10 consecutive weeks or at least 10 consecutive days of parental leave, from the day the adoption order is granted or the child is placed in the care of a prospective adoptive parent by a competent court, whichever date occurs first.

The one parent can now take at least 10 consecutive weeks’ adoption leave while the other parent will be able to take at least 10 consecutive days parental leave. The adopting parents can elect which partner will take which form of leave.

Commissioning parental leave

In terms of section 25C of the BCEA, employees who are commissioning parents in a surrogate motherhood agreement are entitled to either commissioning parental leave of at least 10 consecutive weeks or parental leave of at least 10 consecutive days. The commissioning parents can elect which of the parents will take which leave.

Family responsibility leave

Family responsibility leave provisions (save for leave when a child is born) remain intact and employees may take family responsibility leave in instances where the employee’s child is sick or in the event of a death in the family.

Change your employee contracts

In light of these changes to the law, employers are encouraged to review their outdated policies and employee contracts in order to ensure that they remain compliant with recent labour law amendments.

Bregman Moodley Attorneys can assist.