How to claim time off under South Africa’s new paternity leave law

In terms of the Basic Conditions of Employment Act, a new father is only entitled to three days paid family responsibility leave. However, this was changed in November 2018 when the new Labour Laws Amendment Act was signed into law.

According to law firm Wright Rose-Innes, 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.

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,”it said.

How to claim

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.

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.

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How to claim time off under South Africa’s new paternity leave law