The provisions in the Labour Laws Amendment Act, 2018 relating to parental leave, adoption leave and commissioning parental leave came into force on 1 January 2020 with the effect that these categories of leave have now been introduced as statutory entitlements under the Basic Conditions of Employment Act, 1997 ("BCEA").

Up until 31 December 2019, the BCEA provided for 3 days’ paid family responsibility leave that could be used in the event of the birth of a child. This has now changed as family responsibility leave may no longer be used in the event of the birth of a child and may now only be used in the event of bereavement or when a child is sick. Parental leave has, however, been introduced in terms of which an employee who is not granted adoption leave or commissioning parental leave is entitled to 10 consecutive days’ unpaid parental leave in the event of the birth or adoption of a child. This is slightly less favourable than the previous family responsibility leave provisions which provided for paid leave. Employees can, however, claim benefits from the Unemployment Insurance Fund in respect of such leave.

In terms of the BCEA, female employees are entitled to 4 consecutive months' unpaid maternity leave. Previously the BCEA did not provide for adoption leave.  In MIA v State Information Technology [2015] 7 BLLR 694 (LC), it was held that the employer unfairly discriminated against a male employee in a same sex partnership when it refused to grant the male employee paid adoption leave in circumstances where female employees were granted paid adoption leave by the employer. 

Now, in terms of the new provisions in the BCEA, an employee who is the adoptive parent of a child under the age of 2 is entitled to 10 consecutive weeks’ unpaid adoption leave. Rights have also been granted to employees who have children through surrogacy arrangements. In this regard, an employee who is a commissioning parent in terms of a surrogate motherhood agreement will also be entitled to 10 consecutive weeks’ unpaid commissioning parental leave. If an adoption order or surrogacy arrangement is in respect of two parents, then the one parent may apply for adoption leave or commissioning parental leave, as the case may be, and the other parent would be entitled to parental leave. 

The abovementioned leave is unpaid but employees can claim benefits from the Unemployment Insurance Fund. A number of employers have policies in terms of which they pay employees a portion of their salary during maternity leave subject to the employee meeting certain requirements, for example, the employee having a certain minimum period of service with the employer and entering into a work-back agreement in terms of which the employee agrees to work for the employer for a period of time after maternity leave, failing which the employee would reimburse the employer for the maternity benefits. If employers have such policies in place then they would also probably also need to pay employees during adoption leave and commissioning parental leave to avoid unfair discrimination claims.

Submitted by Edelman