Paternity leave implementation date is imminent – are you ready?

On 27 November 2018 the President signed the Labour Laws Amendment Act into law. It had the effect of amending the Basic Conditions of Employment Act including by introducing Parental Leave, Adoption Leave and Commissioning Parental Leave.

Written By of Cowan-Harper-Madikizela Attorneys

The amended BCEA now permits fathers to take ten consecutive days of unpaid Parental Leave after the birth of their child. It also provides that Adoptive Parents and Commissioning Parents are entitled to either ten weeks of unpaid Adoption Leave / Commission Parental Leave or ten days of unpaid Parental Leave. Spouses can elect which spouse will take Parental Leave and which spouse will take Adoption Leave / Commissioning Parental Leave.

A number of commentators have erroneously suggested that these provisions are currently in force when, in fact, a commencement date has yet to be proclaimed by the President. The reason for the delay in implementation is to allow the Unemployment Insurance Fund the opportunity to put in place the necessary forms, regulations and processes to allow spouses to claim the new leave benefits from the UIF.

The draft UIF Regulations were, in turn, published for comment on 2 September 2019 with the commentary period set to expire on 15 October 2019. The Department of Labour estimates that the new leave provisions will thereafter be signed by the President and become effective in the week commencing on 4 November 2019 or shortly thereafter.

It is accordingly critical for employers to take the requisite steps in order to become compliant with the new legislation. A number of aspects should be considered when undertaking this task including the following:-

  1. the effect of the new provisions on the existing entitlement to paid Family Responsibility Leave;
  2. by way of example, existing Family Responsibility Leave entitlements will remain for sick children or in the event of the death of certain family members. Taking Parental Leave will accordingly not reduce any existing Family Responsibility Leave entitlement and payroll departments should be advised not to inadvertently make any unlawful leave reductions. It is also possible that certain employees may be entitled to both Parental Leave and Family Responsibility Leave (i.e. in the event of the birth of a sick / pre-term child). This should be specifically dealt with in leave policies in order to avoid any confusion;
  3. the fact that Parental Leave will be subsidized through UIF benefits and will not be paid for directly by employers (as was formerly the case with Family Responsibility Leave). Where existing contracts of employment contain contractual entitlements giving rise to paid Family Responsibility Leave following the birth of a child, that should be addressed as a matter of priority in order to avoid any misunderstanding in relation to what, when and how much employees can claim;
  4. the need for benefits departments to be ready to advise on and assist employees with UIF claims including by knowing which forms are required to be submitted by the employer in order for employees to claim;
  5. the need for leave policies to stipulate the notice period required to be given to the employer prior to the commencement of Parental Leave, Adoption Leave or Commissioning Parental Leave. Leave application forms should also be amended to provide for the new types of leave;
  6. the need for leave policies to stipulate the level of proof required where one spouse elects to take Parental Leave and another spouse elects to take Adoption Leave / Commissioning Parental Leave
  7. the need to stipulate whether employees will be flexible in relation to when Parental Leave may commence. Many employers have existing leave policies which entitle male employees to commence Family Responsibility Leave only after the expiry of their wives’ maternity leave. Employers must decide whether they will be similarly flexible in relation to Parental Leave (i.e. whether Parental Leave may be taken after the expiry of the Maternity Leave, Adoption Leave or Commissioning Parental Leave taken by the other spouse);
  8. the updating of intranet / online leave application systems in order to provide for Parental Leave, Adoption Leave and Commissioning Parental Leave options;
  9. the effect of the new provisions on ‘work-back’ policies or work-back agreements (i.e. agreements in terms of which employers cover the shortfall in UIF maternity benefits by paying the balance of the employees’ salary for the duration of maternity leave);
  10. in this regard, the UIF typically permits employees to claim a maximum of 66% of their monthly salary for the duration of their maternity leave subject to a statutory cap presently in the amount of R17, 712.00 per month. Many employers conclude so-called ‘work-back’ agreements in terms of which the employer voluntarily covers the shortfall between the UIF benefits and actual salary subject to an undertaking that the employee will be responsible for a pro-rata portion of that amount if they resign within a certain period after the birth of a child;
  11. employers must decide to what extent ‘work-back’ policies will apply to male employees who take Adoption Leave / Commissioning Parental Leave which are also subject to UIF benefits. The failure to include male employees in such work-back policies could potentially constitute unfair discrimination and therefore create a risk for employers who differentiate between men and women in that regard;
  12. whether to grant similar benefits to employees on Maternity Leave and employees on Adoption Leave / Commissioning Parental Leave. In this regard, certain large employers provide additional benefits to mothers including paid Maternity Leave and/or Maternity Leave in excess of four months. Employers need to determine whether similar benefits will be applicable to Adoptive Parents and Commissioning parents, bearing in mind that the failure to do so may invite an unfair labour practice and/or unfair dispute.

In many cases employers have already taken the steps necessary to address these and other issues in order to ensure that they are compliant immediately upon the commencement of the new leave provisions. Employers who have not given thought to these issues or who have yet to rectify their existing leave policies and contracts of employment should accordingly do so as a matter of priority.

James Horn

James Horn
Associate Director of Employment

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