As from 1 January 2020 all three of the following forms of leave are legally provided for under the Basic Conditions of Employment Act:
- Parental leave
- Adoption leave
- Commissioning parental leave.
Subject to your employer’s policies and practices, these types of leave are paid by the Unemployment Insurance Fund (UIF) after having complied with their regulations.
Since these types of leave provide for absence between 10 (Ten) days and 10 (Ten) weeks per annum, it is crucial that employees discuss their plans with the employer as soon as they become aware of the various situations arising. As a general rule, the employee must notify the employer at least a month prior to the envisaged date the leave is planned to be taken by the employee. In addition, sufficient proof of the event(s) will be required to be presented by the employee to the employer.
Employees who wish to access the revised parental leave benefits of 10 (Ten) days per annum paid by the Unemployment Insurance Fund will be able to do so with full rights under the Basic Conditions of Employment Act (BCEA) as from 1 January 2020. This was contained in Gazette 42925 which was published on 23 December 2019. It clarifies the confusion that arose when employees were allowed to claim parental leave of up to 10 (Ten) days under the Unemployment Insurance Act (UIA) from 1 November 2019 but since there was no corresponding amendment to the BCEA, employers were not under a legal obligation to provide the 10 days parental leave under the BCEA – only the statutory 3 days.
Hence under the BCEA, as from 1 January 2020, employees will be able to access parental leave of up to 10 (Ten) days per annum. In cases of legally recognised adoption of children under 2 (Two) years of age and commissioning parental leave agreements, one of the partners will be able to access up to 10 (Ten) weeks’ adoption or commissioning parental leave. Adoption benefits already form part of the UI Act but the it appears that the right to access commissioning parental leave of up to 10 (Ten) consecutive weeks per annum will only be system-ready in the UI context from 1 April 2020 when the systems have passed user acceptance testing in this regard.
The amendments that had already been implemented since 1 January 2019 include paying for maternity benefits at 66 (Sixty-six) % of the employee’s rate of payment.
Unemployment, illness adoption and dependent benefits can also be claimed for up to a full year at the proportions stipulated rather than for the previous 238 (Two hundred and thirty-eight) days. In most instances, the period within which to claim benefits have been extended from 6 (Six) months to 12 (Twelve) months. Another example of the more beneficial provisions is that illness benefits can be claimed for illness of more than 7 (Seven) days, previously 14 (Fourteen) days.
There is little doubt that these amendments will provide greater assistance to employees and the growing number of unemployed. However, employers will have to pay greater attention to their workforce planning requirements as they may well experience greater levels of absenteeism across the parental, adoption and commissioning parental scenarios.
Employers need to amend their human resources policies and procedures in respect of parental, adoption and commissioning parental leave as soon as possible as these rights arise under the BCEA as from 1 January 2020, of which we have already did the same in last year.
The table set out below provides more detail on these provisions:
|
LEAVE TYPE |
PROVISIONS IN BCEA | UIF PAYMENT |
EMPLOYER POLICY |
| Parental Leave | 10 Days per annum when an Employee’s child is born, or when the adoption order is granted and or when the child is placed in the care of a prospective adoptive parent by a competent court pending finalisation of an adoption order or when commissioning parental leave applies. | Generally paid at 66% of the earnings of the Employee, subject to the maximum income earnings threshold. Also subject to other stipulated UIF preconditions. | |
| Adoption Leave | Where the child is below 2 years of age, 10 weeks adoption leave or where there are two adoptive parents, one may apply for parental leave and the other for adoption leave. | Generally paid at 66% of the earnings of the employee, subject to the maximum income earnings threshold. Also subject to other stipulated UIF preconditions. | |
| Commissioning Parental Leave | Where an Employee is a commissioning parent, 10 weeks leave or where there are two parents, one may apply for commissioning parental leave and the other for parental leave. | Generally paid at 66% of the earnings of the employee, subject to the maximum income earnings threshold. Also subject to other stipulated UIF preconditions. |
As a general rule, the Employee must notify the Employer in writing of the date (at least 1 (One) month prior to the date of the event or as soon as is reasonably practicable) on which the Employee intends to commence the particular leave and return to work after the said leave.
The original inclusion of “when a child is born” is now removed from FRL and is replaced by the Parental Leave set out above.
Ref_ Global Business Solutions.
