Understanding Parental, Adoption & Commissioning Parental Leave

The Labour Laws Amendment Act 10 of 2018 (LLAA) amended the Basic Conditions of Employment Act 75 of 1997 with regards to categories of leave, as well as unemployment insurance (UIA). It introduced the parental, adoption and commissioning parental (surrogacy) leave. This means that employees are now legally entitled to these types of leave in suitable circumstances. While maternity leave is for female employees who give birth, parental leave is much broader and is inclusive of fathers in heterosexual relationships, females in same sex relationships, or males in same sex relationships.

In the table below we will present some of the most important aspects with regards to parental, adoption and commissioning parental (surrogacy) leave.

	PARENTAL LEAVE	ADOPTION LEAVE	SURROGACY LEAVE
Whom it applies to	Parent of child born	Adoptive parent of a child below the age of 2 years	Commissioning parent in terms of a surrogacy agreement
Leave period	10 consecutive days	10 consecutive weeks	10 consecutive weeks to primary care-giving commissioning parent
Required documents to apply	Birth certificate	Adoption Order of the Court	Commissioning Parent Agreement
Notification to employer	1 month notice or asap prior to expected birth	1 month before date of adoption or asap.	1 month notice or asap prior to expected birth
Paid or unpaid?	Unpaid (employer discretion)	Unpaid (employer discretion)	Unpaid (employer discretion)
Any UIF benefits?	Yes	Yes	Yes

Kindly take note of the below;

In the case of opposite sex parents of a child, the mother would ideally take maternity leave (if biological) whilst the father takes the parental leave.
In the case of same sex male relationship, one parent may take parental leave while the other may take the adoption or commissioning parental leave.
Where same sex female relationship is concerned, the biological mother may take the maternity leave while the other takes parental leave.
Employers may require proof of what category of leave the other parent has been granted to avoid abuse whereby both parents take the same type of leave.

At Van Deventers & Van Deventers we offer a full spectrum of labour and employment law services. Our attorneys are astute and professional, assisting employers and employees alike. The labour relationship is one of competing interests between the employer and the employee, one needs attorneys who are knowledgeable and seasoned in this sophisticated area of law so that interests and rights are secured.

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