South African labour law does not explicitly provide guidelines for maternity and paternity leave for parents who have adopted a child. However, here is a rundown of the relevant legislation, with suggestions of how it could apply to adoptive parents.
The Basic Conditions of Employment Act (BCEA) entitles a pregnant woman to four consecutive months of maternity leave, which may start at any time within one month of the birth, and which must extend to at least six weeks after the birth.
Maternity leave can be either paid or unpaid, depending on the employer and the employment contract. Anybody can claim up to three days of paid family responsibility leave; a father can take this leave when his child is born.
Accordingly, upon the adoption of a child, both parents are entitled to at least three days of paid family responsibility leave. However, this may not be a sufficient amount of time if the child is very young and needs constant care.
Also, it does not allow enough time for the parents, particularly the mother, to bond with the adopted child and to introduce the child to the family and home environment.
In addition, part E of the Unemployment Insurance Fund Act explains how adopting parents can claim UIF benefits if they spend time away from work caring for their adopted child, as long as the child is under two years old.
In general, fairness must prevail in the adoption scenario. Employers are advised to establish policies in this regard to ensure consistency and fairness. Fair labour practice would dictate that the mother of an adopted child – whether the child has just been born or is several years old – should be allowed to take four months of maternity leave upon the arrival of the child. The father can, in any case, take the three days of family responsibility leave.
In the case of same-sex couples adopting a child, one parent should be designated the four-month maternity leave, while the other takes the three-day family responsibility leave.
The particulars of each scenario will determine what makes up an adequate and fair amount of leave, and the employees must consult with their employers well before the adoption to determine what the company procedures are.
The University of Cape Town (Law@Work) Practical Labour Law course starts on 6 September 2010 and registrations close on 27 August 2010. For more information call Karin on 021 685 4775 or email Karin@getsmarter.co.za
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