On 1 January 2020, new parental leave laws for South Africa took effect, after President Cyril Ramaphosa signed off on amendments to the Basic Conditions of Employment Act (BCEA). Here’s what you need to know about parental leave in South Africa in 2021.
All parents except mothers who give birth are entitled to parental leave – not just fathers. Parental leave means that fathers, adopting parents, commissioning parents, and prospective adoptive parents are entitled to 10 consecutive days of unpaid parental leave upon the birth of their child or the granting of legal adoption. This applies regardless of gender, so applies to parents in same-sex relationships. The rules for parental leave don’t pertain to mothers who give birth as they are already entitled to four months of unpaid maternity leave.
If an employee is a single adoptive parent, they are entitled to longer leave. A single adoptive parent can take up to 10 consecutive weeks of leave upon the granting of adoption. However, where there are two adoptive parents, one may take 10 weeks of leave while the other one may take normal parental leave time of 10 consecutive days.
Commissioning parents – that is, persons whose child is being carried by a surrogate mother – are entitled to commissioning parental leave. The primary commissioning parent (the one who will be chiefly responsible for taking care of the child) will be able to take commissioning parental leave. If there are two commissioning parents, the other person can take regular parental leave. The individual who goes on commissioning parental leave will be given 10 back-to-back weeks of leave. Surrogate mothers, on the other hand, would most likely “be entitled to at least six weeks’ maternity leave envisaged by the section 25(3) of the BCAE”, according to Labour relations advisors Labourwise.
Parental leave rules apply to an employee who has a child legally placed in their care. An employee may become what is known as a prospective adoptive parent if a child is placed in their care by a competent court. In this case, they may apply for parental leave. Referring to the Children’s Act of 2005, the South African Labour Guide describes a prospective adoptive parent as:
- A person that is fit and proper to be entrusted with full parental responsibilities;
- that is willing and able to undertake, exercise and maintain those responsibilities;
- that is older than 18 years;
- and that has been properly assessed by an adoption social worker.
Employees are permitted to take parental leave once in every 12-month period. They must request it from their employer.
Employers can claim Unemployment Insurance Fund benefits for their workers going on parental leave. UIF contributors (employers) are now entitled to claim for parental leave benefits as well as commissioning parental leave benefits in the case that they cannot pay the full salary of the employee. The employee will then receive 66% of their salary from the UIF up to the earnings limit of R205,433.30 per annum as set out by the Basic Conditions of Employment Act. (You can find the forms to apply for parental leave UIF benefit claims here: http://www.labour.gov.za/parental-leave-forms).
Foreign employees can claim UIF benefits. Foreign nationals as well as workers employed on a learnership are entitled to UIF claims. Labour relations advisors Labourwise describe the other UIF benefits related to parental leave: “Payment of parental benefits, adoption benefits, commissioning parental benefits, and maternity benefits do not reduce an employee’s claim to the payments of other unemployment benefits. So – for example – if a mother loses her job, she will still have access to all the other unemployment benefits that she has accrued.”
Parents and guardians have a limited time to apply for UIF benefits. Employees must claim parental benefits within the 12-month period after the birth of their child or the date the adoption order or court order for prospective adoption has gone through.
Employees planning to take parental leave must give at least one month’s notice. Workers must give written notice at least one month prior to taking parental leave. They must notify their employers of:
- The due date of their child – which is when their leave will commence – and when they will come back to work
OR, if, they are adopting,
- The date the employee is granted the adoption order or the date that the child will be placed in the employee’s care by a competent court.