After several years of legal limbo, government notified employers that the parental leave laws, which were promulgated in November 2018, would come into effect on 1 January 2020.
The Labour Laws Amendment Act added three new leave types to the Basic Conditions of Employment Act (BCEA):
- Adoption leave,
- Parental leave (for fathers), and
- Commissioning parental leave.
The Government Gazette announcement means that employees are entitled to these kinds of parental leave as of January this year, and that family responsibility leave may no longer be granted in respect of childbirth.
Employers who prepared for this new legislation are now well-placed for its effect – even though the timing of the notice (published on 24 December 2019) would have caught many by surprise.
At the Sage Annual Payroll Tax Seminar last year, payroll administrators and business owners had questions about the new parental leave. Some of them were:
How have the UIF benefit entitlements for parents changed?
The Labour Laws Amendment Act amended the Unemployment Insurance Fund (UIF) Act to establish a fund that pays for 10 consecutive days of parental leave, and for 10 consecutive weeks of adoption and commissioning leave. Previously, fathers would use their three days family responsibility leave as parental leave, and the company (as opposed to the UIF) would pay this.
When will the UIF implement these changes?
The UIF benefit for parental leave came into effect with the Government Gazette notice, but the UIF benefits for adoption leave and commissioning parental leave only take effect on 1 April 2020. Leading up to that date, the employer would need to pay for the leave, or treat it as unpaid leave. Because of the low occurrence of adoption leave and commissioning parental leave, impact on employers is likely to be limited.
Does the father’s name need to be noted on the birth certificate for him to qualify for parental leave benefits?
The UIF will not pay the benefit if the father’s name does not appear on the child’s birth certificate. The employer, however, may grant the 10 days of parental leave without seeing the birth certificate, but they then carry the risk of non-compliance. If the father’s name does not appear on the birth certificate, either the employer must pay for the leave or treat it as unpaid leave. More than 60% of babies born in recent years have no paternal information included on their birth certificate, making this a weakness in the legislation.
Are there limits on how many parental leave days a father can take in a year?
The number of times in total that a male can be granted parental leave is not limited by the BCEA, nor is the number of times this leave can be taken in a year (or over any other period). Theoretically speaking, if a man fathers 10 children in a year (and has his details on all 10 birth certificates), he is entitled to 10 parental leave periods of 10 days each.
In terms of adoption and surrogate commissioning leave, can both parents apply for 10 days of consecutive parental leave?
In the cases of adoption leave and surrogate commissioning leave, one parent is entitled to 10 consecutive weeks of leave and the other parent is eligible for 10 consecutive days of parental leave. Which parent takes which period of leave is for them to decide. Unless working for the same employer, it could be difficult to police whether both parents take the full 10 weeks of leave. Whether or not the UIF will detect such abuse remains to be seen.