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New parental leave entitlements in effect

15 January 2020
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The Labour Laws Amendment Act 10 of 2018 (LLA Act), which introduces new forms of leave for parents in South Africa (in addition to the existing maternity leave entitlement), was signed into law by the President on 23 November 2018.

At that time, the law was still to come into force on a date to be fixed by the President by proclamation in the Government Gazette.

When it comes to the amendments to the Basic Conditions of Employment Act 75 of 1997, 1 January 2020 is the effective date, and the new forms of leave are now inserted into this Act. This means that with effect from 1 January 2020, employees who become parents will now be entitled to take parental leave, commissioning parental leave or adoption leave, as applicable.

In particular:

  • an employee who is a parent of a child, is entitled to at least 10 consecutive days’ parental leave; 
  • adoption leave entitles an employee, who is an adoptive parent of a child who is below the age of two, to adoption leave of at least 10 consecutive weeks, or the parental leave referred to above; and 
  • an employee who is a commissioning parent in a surrogate motherhood agreement is entitled to commissioning parental leave of at least 10 consecutive weeks, or the parental leave referred to above.

The employer is not required to pay the employee during these forms of leave, but the employee may qualify for benefits under the Unemployment Insurance Act 63 of 2001, as is the case with maternity leave.

In terms of the amendments, employees are no longer entitled to take paid family responsibility leave in the event of the birth of their children, as this is now covered by parental leave. However, employers must note that where an employee’s contract of employment already entitles her/ him to paid family responsibility leave when the employee’s child is born, the employer would not be entitled to deprive the employee of this contractual right to use family responsibility leave in these circumstances.

There are some provisions of the LLA Act, which make changes to the Unemployment Insurance Act, that are still to come into force. Notably, the provisions which will allow employees to claim commissioning parental benefits in respect of a period of unpaid or partially paid commissioning parental leave are not yet in force.

It would therefore appear that, at this stage, employees taking parental leave or adoption leave will be entitled to claim benefits (subject to meeting prescribed requirements), but that commissioning parents in a surrogate motherhood agreement will not yet be able to claim benefits from the Unemployment Insurance Fund.