For the first time in South Africa, parental leave is truly equal. A recent Contitutional Court ruling has redefined the way employers must approach parental benefits by granting all parents – biological, adoptive and commissioning – the right to four months and ten days of leave to share as they choose.
In the judgement, the ConCourt declared certain sections of the Basic Conditions of Employment Act and the Unemployment Insurance Fund (UIF) discriminatory because they differentiated between mothers and fathers, and between a birth mother and other mothers or parents of a child.
“This ruling levels the playing field for all parents in the workplace, replacing an outdated system that gave mothers extended maternity leave while limiting fathers and other parents to just ten days,” says Bongiswa Madikane, HR Consultant at CRS. “The amended legislation acknowledges that all parents play an essential role in early childcare and that family structures have evolved beyond traditional norms.”
The ruling also marks a turning point for employers, she continues. “Businesses must now urgently review and update their leave policies to make sure every parent – regardless of gender, family structure or how their child comes into their life – can understand and access their rights. This means fathers, non-birthing parents, adoptive parents of children of any age, and commissioning parents through surrogacy all have a right to parental leave.”
How it works
Parents can divide the total four months and ten days however they choose, Madikane explains. “If they can’t come to an agreement, the law requires that the leave be split as evenly as possible. Single employed parents are entitled to the full period on their own.”
Expectant mothers may begin their leave up to four weeks before the expected birth date, and may not work for six weeks afterward unless a medical professional certifies them fit to return. These periods are included in the total leave.
For adoption or surrogacy, the leave starts on the date a child is placed with the adoptive parent, or on the birth date under a surrogate motherhood agreement.
To qualify for the leave, both parents must, before the birth date of their child, notify their respective employers in writing of how they intend to split the 18 weeks between them by specifying the duration and allocation of leave periods for each parent.
Madikane notes that employers are not legally required to compensate their employees during the parental leave period, so no changes to the company payroll are required. “However, parents are entitled to claim from the UIF if they contribute,” she adds.
Navigating the transition
Employers are urged to act promptly to align their leave policies with the new legislation. “It's a complex adjustment, but CRS is on hand to guide businesses through the change,” says Madikane. “Our team helps organisations review existing policies and update procedures to accurately manage and track the shared leave between parents’ respective employers. Additionally, we ensure that the changes are clearly communicated to employees so that they fully understand their rights and responsibilities.”
“With CRS’s expert guidance and practical support, employers can transition confidently while maintaining compliance and supporting their people,” she concludes.
For more information, go to: https://www.crs.co.za/
