EXPLAINER: Parental leave - who pays, who qualifies, and what employers have to do

Paid parental leave is effective from January 2020.

South Africa's new parental leave legislation came into effect at the beginning of the year.

But how will it work? Is it paid? Who qualifies? Are any legislative changes still outstanding? And what exactly are employers' obligations? 

Fin24 spoke to Andre van Heerden, Senior Associate and Jacques van Wyk, Director, Werksmans Attorneys.

What has changed? 

Employees now have the right, in the requisite circumstances, to 'parental leave', 'adoption leave' or 'commissioning parental leave' in terms of the Basic Conditions of Employment Act.

Employers have the obligation to grant this leave, where it is due.

Who qualifies for parental leave?

Parents who have not given birth: adoptive parents, fathers, and those becoming parents through surrogacy agreements. If adopting, the child must be younger than two.

How long is it? 

The Labour Laws Amendment Act of 2018 (LLAA) provides for various scenarios, detailed below.

What are the key differences between parental leave and maternity leave?

Maternity leave is for female employees who give birth. It is for four consecutive months.

An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth.

As mentioned above, parental leave is broader.

The LLAA also provides for 'adoption leave' and 'commissioning parental leave'.

Adoption leave is for 10 weeks. Where an adoption order is made in respect of two parents, then one parent may apply for adoption leave and the other parental leave. The same principle applies to 'commissioning parental leave.'

Is parental leave paid?

Employers are not obliged to pay. Persons on parental leave may apply for Unemployment Insurance Fund (UIF) benefits.

How much UIF can you be paid?

If you are on parental leave, you cannot be paid out more than you would have been remunerated had you been at work. The rate of payment of paternity leave benefits is determined in terms of the UI Act. 

If you qualify for parental leave, you'll be paid out for a maximum of 10 consecutive days. You're only entitled to these benefits if you have been employed for at least 13 weeks before the date on which you applied for the UIF benefits. 

Parents applying for 10 weeks of adoption leave will be entitled to claim UIF for a longer period, say Van Wyk and Van Heerden, but note that this provision has yet to come into operation.

There was a partial change to the relevant legislation in November. What has changed between November and now?

In November 2019, several amendments to the UI Act, provided for in the LLAA, came into effect.

The amendments that came into effect in November only related to the Unemployment Insurance Act 63 of 2001, paving the way for the payment of UIF benefits once parental leave kicked in.

In fact - as noted above - there are also further amendments to the UI Act, as set out in the LLAA, that have yet to come into effect. 

The amendments to the UI Act that came into effect in November had little impact on employers, say Van Heerden and Van Wyk, as they did not yet create an obligation to provide parental leave to employees.

As of January, however, the legislation regarding parental leave came into effect and employers are now obliged to provide parental leave to qualifying employees.

How do I claim?

A UIF contributor who is the parent of a child is entitled to claim benefits if they:

  •        Have been registered as the father of the child in terms of the Births and Deaths Registration Act 51 of 1992
  •        Are the parent or prospective parent of an adoptive child below the age of two, or
  •        Are the parent of a child born as the result of a surrogate motherhood agreement.

A contributor is defined as a natural person who is or was employed, to whom the UI Act applies, and who can satisfy the UIF Commissioner that they made contributions.

Applications for payment must be made at an employment office and must be accompanied by the completion of the prescribed form UI2.9.

Several important documents must be attached, including the applicant's identity document and the child's birth certificate. (A full list is available here.)