Paternity and Adoption Leave

As of 1 January 2020, the new parental law pertaining to leave came into effect.Prior to this law, new parents, excluding mothers, had to use their annual leave or family responsibility leave when fathering a child, adopting a child or if they assisted as a surrogate.

The Labour Laws Amendment Act of 2018[1] amended Basic Conditions of Employment Act[2] (hereinafter referred to as “the Act)” to include Parental Leave, Adoption Leave and Commissioning Parental Leave (surrogate).

The Act now entitles new parents to apply for 10 (Ten) consecutive days of unpaid Parental Leave when their child is born.

With regards to Commissioning Parents or Adoptive Parents, they are now entitled to 10 (Ten) weeks unpaid Adoption Leave or Commission Parental Leave or 10 (Ten) consecutive days Parental Leave. The choice as to which parents elects which type of leave they take with regards to the above mentioned are entirely up to them.

In order to qualify as a “prospective adoptive parent” one must comply with the requirements that have been set out in the Children’s Act[3]. Such requirements are therefore:

  • A person who is fit and proper to be entrusted with the full set of parental rights and responsibilities;
  • A person who is willing to undertake, maintain and exercise the above mentioned rights and responsibilities;
  • A person who is 18 (Eighteen) years old and above; and
  • A person who has been assessed accordingly by an adoption social worker.

Both male and female employees are entitled to parental leave subject to their relationships. However, when a woman gives birth, she is not entitled to parental leave as the Act remains intact regarding the 4 (Four) months unpaid maternity leave.

As is stands, new parents are entitled to parental leave once every annual leave cycle and should apply in writing to their employer, at least a month prior to the birth of their child or the successful adoption of their child. The employee must state when the child is expected to be born; or the date that the adoption order will be granted.

One must keep in mind that the above mentioned leave will be unpaid. In terms of the Labour Law Amendment Act, an employee is entitled to 66% of their regular earnings subject to the maximum income threshold as per the Unemployment Insurance Act[4]. This means, an employee must apply for their Unemployment Fund to be paid out during their leave.

[1] Act 10 of 2018.

[2] Act 75 of 1997.

[3] Act 38 of 2005.

[4] Act 63 of 2001.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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