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Maternity leave: who qualifies?

When does a man qualify for maternity leave? It’s a complicated issue as a recent case has demonstrated.

Many older women can still remember having to take annual leave when they had their babies, as there simply wasn’t any consistent legal provision made for maternity leave in South Africa until 1997.

This was when Section 25 of the Basic Conditions of Employment Act 75 became law in this country.

Before this happened, the great fear among women was also that they would lose their jobs while they were off work looking after the new baby. Then, of course, there was the prospect of having no income for the time they were off work.

What are the current legal provisions?

As far as the first issue of job loss is concerned, the law now makes provision for 4 consecutive months of maternity leave – one month before the birth of the baby, and three months after the birth. This is, as we are reminded by the South African Labour Guide, four months of unpaid leave. So while the employer is obliged to grant the employee four months of maternity leave, and to let the employee return to work, the employer is not obliged to pay the employee during those four months.

But, these are minimum requirements, as we are reminded by senior associate Naledi Motsiri and HR manager Olivia Timothy from Werksmans attorneys. A company can choose how much to pay their employees for maternity leave. If they choose not to pay at all, the employee can claim 17 weeks of maternity leave from the Unemployment Insurance Fund (UIF). This is usually about 45% of the employee’s salary.

There is nothing that stops a company from granting more than four months of maternity leave.

Civil unions, surrogate parents and adoptions

But what about paternity leave? And leave for parents (in civil unions or otherwise) who adopt babies?

Currently the law grants a new father three days of family responsibility leave when a child is born, says Werksmans Attorneys.

But a recent case (MIA v State Information Technology Agency (Pty) Ltd [2015] JOL 33060 (LC) was a groundbreaking one. Two men in a civil union entered into a surrogacy agreement to become the legal parents of the child she gave birth to. When one of them applied for maternity leave, he was told that the law only applied to female employees. He challenged this in court and won the case on the basis of being a victim of unfair discrimination based on gender. The law is also intended to protect the interests of the child, not just the birth mother.

Some companies do grant adoption leave, but this is at the discretion of the companies and not a separate legal prerequisite. And it is usually much shorter than maternity leave.

But many questions remain after the recent judgment in the case mentioned above, says Werksmans Attorneys.

· What does the law say about surrogacy agreements in heterosexual marriages?

· Do both partners qualify for maternity leave if they are in a civil union?

· How will it be decided which one?

· If so, does this not discriminate against heterosexual men in traditional marriages, who are only entitled to three days?

There is clearly still some work to be done on the part of our legislators in order to clear up these grey areas on the complicated issue of maternity leave, who qualifies for it and when.

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