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Understanding mandatory paternity leave

Currently, legislation allows for unpaid leave for fathers and organisations can implement their own paternity policies as long as they don’t contradict the law.

The Basic Conditions of Employment Act (BCEA) stipulates that an employee is entitled to ten consecutive days of parental leave, regardless of their gender. The regulation, implemented as of January 2020, allows for paternity leave and for improved access to parental leave for same-sex families. This legislation allows for fathers to take ten days of unpaid leave and can be adapted by organisations, as long as they do not give less than what is stipulated by the BCEA. This regulation, says Nicol Myburgh, Head: CRS Technologies HCM Business Unit, has undergone significant changes to ensure that families get more quality time with their children.

“In the past, paternity leave was incorporated with family responsibility leave, which covered a death in the family, a sick child and other essential family requirements, and only extended up to three days,” he explains. “Now, on the birth of a child, this has changed to 10 days unpaid leave but does allow for employees to then claim up to 66% of the maximum threshold from the Unemployment Insurance Fund (UIF). Currently, that threshold sits at around R17,000.”

This regulation cannot be overwritten by an organisation unless it provides the employee with additional benefits. For example, a company may provide its employees with paid paternity leave for a longer period of time, or may allow for a longer period of unpaid paternity leave – the structure of the package is entirely dependent on the company as long as it doesn’t cut the 10 days leave threshold in any way.

“Employers are under no obligation to pay paternity leave, which is why the regulation allows for the payment of a certain percentage of a salary from UIF,” says Myburgh. “If an employer does pay the employee paternity leave, then the employee won’t be allowed to claim additional funds from UIF. The latter is there as a safeguard for employees who are given the leave, but not the salary.”

The situation becomes slightly more complex when added to the regulations surrounding parental leave and commissioning parental leave. These elements are introduced when, for example, a couple adopts a child. Adoption doesn’t fit within the traditional outlines of maternity or paternity leave and is instead described as commissioning parent leave. A single adoptive parent is entitled to 10 weeks of adoption leave, but with two adoptive parents, one would take the 10 weeks and the other would then be entitled to 10 days’ unpaid parental leave as outlined above.

“If the child is born into a same-sex marriage where one mother gives birth, then she gets the maternity leave while her partner gets parental leave,” says Myburgh. “If the marriage is between two men, then the one would get 10 weeks leave while the other would get ten days. The regulations now provide for a wider variety of families and give parents more time to spend with their children.”

While the regulations around leave are clear, organisations can adapt these rules to allow for families to spend more time with their children. The BCEA merely provides a foundation as a minimum requirement from which organisations can structure their parental and maternity leave regulations.

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