Parental Leave is governed by the Parental Leave and Employment Protection Act 1987, and the legislation can create challenges for employers which, if managed poorly, can result in a personal grievance being made.
Employers are not under any obligation to provide paid parental leave. By default, parental leave is unpaid, and employees are eligible to claim parental leave payments via the IRD depending on the government eligibility test, which is slightly different to the employer’s eligibility test below, as the calculation can include the employee’s service at a previous employer. Employees should be directed to the IRD to receive advice on claiming parental leave payments.
The conditions and requirements surrounding parental leave can be complex and the information below should be seen as a guide only. For advice on specific circumstances we recommend contacting our advisors.
There are 5 kinds of “parental leave”
- Special Leave – this is a maximum of 10 days leave given only to an expectant mother to attend to medical needs, scans and antenatal classes etc (A partner cannot claim this to go along to a scan, for example).
- Primary Carer Leave – a maximum of 26 weeks leave given to the person with primary carer responsibility for the new child
- Partners Leave – this is a maximum of 2 weeks leave (depending on the partners entitlement) given to the partner of the primary carer.
- Negotiated Carer Leave – this is only for newer employees who have no legal entitlement to other parental leave, and it is by negotiation and agreement only.
- Extended Leave – a maximum of a further 26 weeks available to one or both partners in a sharing arrangement when entitled. This can also be split in to 2 or more separate periods of leave; it does not have to be continuous.
“Parental Leave” applies both to the birth of a child to an employee or partner, and to the adoption of a child under 6 years old, by an employee or their partner.
Employees are eligible for Parental Leave in their first year of employment, depending on their length of service.
Below is an outline of entitlements for a mother or primary carer:
- An employee with less than 6 months of service has no entitlement to parental leave but is legally able to negotiate with an employer for an amount of Negotiated Carer Leave. The employee may, however, be entitled to government funded paid parental leave that includes their service at a previous employer.
- An employee with between 6, and 12 months continuous service is entitled to:
- 10 days Special Leave (unpaid).
- 26 weeks of primary carer leave (unpaid, taken continuously).
- 26 weeks of parental leave payment.
- An employee with more than 12 months continuous service is entitled to:
- 10 days special (unpaid) leave during pregnancy for pregnancy related matters such as doctor’s visits etc.
- 26 weeks of primary carer leave (unpaid, taken continuously).
- Extended leave of 52 weeks (including the 26 weeks parental leave).
The extended leave and parental leave payments mentioned above can also be transferred by a mother or primary caregiver to a partner, even if they work for different employers. To transfer or share parental leave an employee will need to communicate this request to their employer. As part of this process, employers may need to verify between each other which employee is taking what leave, to avoid being taken advantage of.
The situations around transfer or sharing of parental leave are complex and unique to a partner’s or mother/primary caregivers’ situation. For advice on specific circumstances get in touch with the HR Assured advisory team.
When does parental leave start?
Primary carer leave generally starts on the confinement of the expectant mother, but the employee can choose to start up to 6 weeks earlier than that. Taking primary carer leave even earlier than that is possible, but requires employer consent, or medical verification. The employer also has the option to direct when primary carer leave starts if they consider the working environment unsafe or the work itself to be unsafe for an expecting employee, and no other safe work is available for them. For example when hazardous chemicals are being handled or exposed.
No matter when the primary carer leave starts, the primary carer must be able to have 12 weeks primary carer leave post-birth – even if this means the minimum entitlements are exceeded.
Partner leave can start at the date of confinement as well, although practically speaking a partner may choose to start their leave when the mother and new-born are released from the hospital and return home.
Notice should always be given in writing, and preferably as soon as the employee is aware of their circumstances but to some extent this is in the discretion of the employee. Regardless, an employee should always give at least 3 month’s written notice of the anticipated arrival date. Adoption dates can be less predictable, but notice should be given as soon as possible after becoming reasonably sure of the date.
The letter requesting leave should at the very least tell you what kind of leave is being requested, from what date to what date. It can also include details of any sharing of leave, with specific details than needed, including all dates and the contact details of the partner’s employer. The employee should attach medical verification of dates and confirmation of who the primary carer will be.
Requests for parental leave owing to adoption should include copies of any court orders, letter from any Ministry caring for the child, an adoption order, or at the very least, a statutory declaration.
The employer should give notice in writing within 3 weeks after leave commences, clarifying
- the expected date of return to work, and also
- the protections provided to the employee in their role including the start and end of any “period of preference” for rehire if the employee resigns.
After the birth
Employees who are invested in remaining in contact with the workplace can certainly do so, but should not do so AT ALL in the first 28 days after birth. Following that, remaining “in touch” is encouraged but must not exceed 64 hours in total. (The IRD can cancel parental leave payments and recover overpaid amounts if this happens). These hours or days are paid and should be worked by agreement. At no stage can an employer request or demand that an employee work those hours.
Returning to work
An employee must give the employer 21 days’ notice in writing, so that the employer can make suitable arrangements to receive the employee back into service, including where applicable lawfully terminating any short-term worker who was providing parental leave cover.
“Employment protection” is the right that an employee has, to not be terminated for reasons relating to
- Being pregnant,
- Her state of health because of the pregnancy,
- Indicating that she wishes to make use of parental leave
- Becoming the primary carer of a child
- This includes a period of 26 weeks after returning to work from parental leave.
The employer is however entitled to terminate an employee
- by mutual consent at any stage; and can also
- terminate an employee who absents themselves without permission from the workplace when not entitled to take leave.
- Owing to legitimate redundancy situation that occurred after the employee commenced parental leave and the employer could not keep the employee’s position open, or reappoint them to a substantially similar position (including during the 26-week preferential period).