South Africa’s new paternity leave law

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February 22, 2019

STAY-AT-HOME DAD – at least for awhile!

Historically and until very recently a new father was only entitled to three days paid family responsibility leave. Finally, South Africa is catching up to the rest of the world granting paid time off work to fathers, so they bond with their babies for the first time.

On 18 November 2018, President Cyril Ramaphosa signed a landmark law that provides new fathers with 10 days consecutive paid leave after the birth of their child. In addition to 10 days for working dads, the law grants 10 consecutive weeks to adoptive parents and 10 consecutive weeks to commissioning parents in a surrogate agreement.

Lemias Mashile, the Chairperson of the Portfolio Committee on Labour, explained what drove the change in legislation:

“The committee is confident that the bill responds adequately to the current and changing socio-economic conditions that are prevalent in the country. The committee remains of the view that the amendments are necessary to improve bonding between parents and the child and strengthen family relations.” Lemias Mashile

Mashile support a “gender-neutral” approach to parenting, where both the mother and father can be considered as “main caregivers”. The reason being that boundaries which define traditional male and female roles are getting narrower.

This new Labour Laws Amendment Act is currently not yet in force and will commence on a date to be proclaimed in the Government Gazette.

There are numerous questions being asked pertaining to this coming law. Herewith a few pointers that could be helpful as explained by the experts.

What you need to know

“Importantly, parental leave, like maternity leave is unpaid leave,” Wright Rose-Innes said.

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.

Wright Rose-Innes said that 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.

According to Wright Rose-Inne, 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 one 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 claiming such leave. It would be the responsibility of the human resources departments at companies to implement the law.

Importantly though, and for the time being until a commencement date for the Amendment Act is passed, fathers are only entitled to three days family responsibility leave.

Although the law has not come to effect as yet, some companies had already started implementing it.

“Our person in our media department had their first baby and we actually gave him 10 days that weekend. That was six months ago. There is nothing stopping any company to do the right thing.” ACDP MP Cheryllyn Dudley

What happens to family responsibility leave? The three days of family responsibility leave will still exist and remains separate from parental leave. However, it cannot be used when a child is born. It can be used in cases when a child falls sick or passes away.

Parliament’s portfolio committee encourages parents to take full advantage of the new law to the benefit of individuals and families.