How changes to legislation on leave allowed when a child is born or adopted affect you

On 1 January 2019, various amendments came into play in relation to both the Basic Conditions of Employment Act and the Unemployment Insurance Act pertaining to the leave which an employee may take when his or her child is born or adopted.

Three additional categories of leave is applicable:

1. Parental Leave;
2. Adoption Leave;
3. Commissioning Parental Leave.

Parental Leave:

1. An employee who is a parent of a child is now entitled to at least 10 consecutive days parental leave in the event of the following:

• An employee’s child is born; or
• An adoption order is granted; or
• A child is placed in the care of a prospective adopted parent by a competent Court.

2. Payment in relation to the above is paid subject to the provisions of the Unemployment Insurance Act, unless the employer has contracted with the employee for such leave to be paid by the employer.

Adoption Leave

3. In respect of adoption leave, the adoptive parent of a child below the age of 2 is entitled to leave as follows:

• Either adoption leave of at least 10 consecutive weeks; or
• Parental Leave of 10 consecutive days (as discussed above).

5. Payment of the adoption leave will be paid out in terms of the Unemployment Insurance Act, unless the employer has contracted differently.
6. If the adoption order is made in respect of two adoptive parents, the adoptive parents must decide which parent would apply for parental leave and which adoptive parent would apply for adoptive leave. Both parents are thus not entitled to apply for adoptive leave in relation to that specific child.

Commissioning Parent Parental Leave

8. The commissioning parent in a surrogate motherhood agreement is entitled to commissioning parental leave of at least 10 consecutive weeks or 10 consecutive days parental leave.
9. Should the surrogate motherhood agreement have two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other apply for parental leave.
10. Payment of the commissioning parental benefits shall be paid in terms of the provisions of the Unemployment Insurance Act, unless the employer has contracted differently.

Given the changes in categories of leave relating to the birth of a child, it is important that employment contracts and policies are properly updated.

For assistance in this regard, please do not hesitate to contact Goldberg & De Villiers, Tracey Mouton, telephone number (041) 501 9818, e-mail address traceym@goldlaw.co.za.

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