Important Changes to Leave Entitlements for Prospective Parents

November 2018 saw same exciting changes in our Labour Law. The Basic Conditions of Employment Act (BCEA) had three new leave entitlements available for parents, adoptive parents and commissioning parents.
 
Previously the BCEA catered for maternity leave for mothers (four months unpaid), but neglected to cater for the needs of fathers, adoptive parents and commissioning parents. The amended Act has ensured that all parents are entitled to leave for bonding with their babies.
 
There has been no change to section 25 of the Act, which covers maternity leave – four months leave and the payment of maternity benefits to be paid by the Unemployment Insurance Fund.
 
Three new sections have been added to section 25 as follows:
 
Parental leave
 
Parental leave is available for parents who do not qualify for maternity leave, adoption leave or commissioning parental leave.
 
Employees claiming parental leave are entitled to ten consecutive parental leave days when the employee’s child is born; or the date on which an adoption order is granted; or the date on which a court places a child in the care of a prospective adoptive parent.
 
This amendment is great news for parents who were previously only entitled to three days family responsibility leave for the birth of their child. Extending the definition to include adoptive parents provides the opportunity for both adoptive parents time to bond with their children.
 
Adoption leave
 
Adoption leave of ten consecutive weeks is available from the date on which an adoption order is granted; or the date on which a court places a child in the care of a prospective adoptive parent.
 
If an adoption order is made in respect of two adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for parental leave.
 
It is not yet clear how the Department of Labour or the employer will exercise control over which parent is applying for the different leave options.
 
Commissioning parental leave
 
Commissioning parents are those who enter into a surrogate motherhood agreement with a surrogate mother.
 
Ten consecutive commissioning parental leave weeks are available to a commissioning parent who is in a surrogate motherhood agreement. An employee is entitled to take the commissioning parental leave from the date on which the child is born.
 
If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other adoptive parent may apply for parental leave.
 
It is not yet clear how the Department of Labour or the employer will exercise control over which parent is applying for the different leave options described above.
 
The above leave benefits are covered by the Unemployment Insurance Fund, the amount of which will be determined by the provisions of the Unemployment Insurance Act.
 
Important to note: The effective date of the three new leave entitlements has not yet been gazetted. Only once the effective date has been gazetted will employers need to implement these changes.
 
Contact Elizabeth here, or get in touch with your local Moore Stephens firm.