Employers often find themselves confronted by employees who want to take family responsibility leave for various personal reasons. However, it’s essential to determine their eligibility for such leave. If they are not eligible, what alternatives can employers consider?
The Basic Conditions of Employment Act of 1997 (BCEA) includes provisions for different types of leave, and with regard to Family Responsibility Leave, Section 27 stipulates the following:
“(1) This section applies to an employee—
(a) who has been in employment with an employer for longer than four months;
(b) who works for at least four days a week for that employer.
(2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days’ paid leave, which the employee is entitled to take—
(a) when the employee’s child is born;
(b) when the employee’s child is sick or
(c) in the event of the death of—
(i) the employee’s spouse or life partner; or
(ii) the employee’s parent, adoptive parent, grandparent, child, adopted
child, grandchild or sibling.”
Critical Points for Employees to Remember
It is important to remember that an employee can’t apply for family responsibility leave (for a sick child) if the child is over 18 years of age.
An employee may take family responsibility leave in respect of the whole or part of a day. Unfortunately, unused leave lapses at the end of the annual leave cycle in which it accrues.
Therefore, in both principle and application, foreign employees needing to return to their home countries for any reason, employees desiring to participate in tombstone unveilings, or those wishing to attend the funerals of distant relatives or cousins, or any other reason not specified in the BCEA do not qualify for Family Responsibility Leave.
Leave Approval and Verification Guidelines Under the BCEA
In the instances where employees are not eligible but still require leave to attend to their matters, it remains the discretion of the company whether to allow such employees to make use of their annual leave, should the employee have any available to them, or take the requested period as unpaid leave.
The BCEA also makes provisions for employers to verify and explore the validity of the leave taken in terms of section 27 (5), which states:
“Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection (2) for which the leave was required.” Such as a doctor’s note or death certificate.
However, South Africa’s business landscape encompasses many industries and sectors, each with its Collective Agreements in effect. It’s worth noting that many of these industries have adopted the BCEA as a minimum requirement for establishing their Family Responsibility Leave criteria.
“(7) A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this section.”
If you would like to find out more about how to properly apply for, or when it is appropriate to take family leave, then please do not hesitate to contact us.