“My wife is due to give birth in two months. I’ve seen media reports that a father is now entitled to longer paternity leave, but when I approached my employer to find out I was informed that I am only entitled to three days family responsibility leave. What is the current position?”
In terms of the Basic Conditions of Employment Act, 75 of 1997 (“BCEA”) a father is currently only entitled to three days paid family responsibility leave. In November 2018 a new Labour Laws Amendment Act (“Amendment Act”) was signed into law. The Amendment Act introduces parental leave for the other parent (i.e. the parent not claiming maternity leave, namely the biological mother) such as the father. This parental leave will entitle a father to 10 consecutive days of parental leave to be taken from the date that the child is born. The Amendment Act is currently not yet in force and will commence on a date to be proclaimed in the Government Gazette.
Importantly, parental leave, like maternity leave is unpaid leave. The Amendment Act also provides for the Unemployment Insurance Act to allow a parent claiming paternal leave the opportunity to claim unemployment insurance of 66% of the earnings of the parent at date of the claim, provided the parent was in employment for at least 13 weeks before the date of application for such parental benefits. The employer will therefore be under an obligation to assist the parent to claim parental benefits from the Unemployment Insurance Fund.
This does not stop an employer from providing for paid or proportionally paid parental leave, although the Amendment Act makes it clear that the parent cannot receive more than the parent would have received had the parent not been on parental leave. Should an employer accordingly provide for paid or proportionately paid parental leave, it will reduce the amount of parental benefits that the parent can claim from the UIF.
In order to claim parental leave, the employee must notify the employer in writing of the date on which the employee intends taking parental leave (to the extent the parent is able to do so) and such notice should be given at least 1 month before the expected date or as soon as the parent is reasonably able to do so. The employer may not deny parental leave to a parent such as a father claiming such leave.
Importantly, that for the time being, until a commencement date for the Amendment Act is passed, fathers are only entitled to 3 days family responsibility leave.