Parental Leave

Parental Leave       

When an employee falls pregnant or requests time off for parental leave, it can be a confusing and sometimes stressful time for both the employee and employer.  The employee is entering a very exciting time in their lives, but with it comes uncertainty.  Some employees may become anxious about their financial situation and/or be concerned about their job stability.  On the other hand, employers have to deal with the gap left by the employee taking maternity leave, as well as the legal obligations and future work situation.

Parental does not have to be a stressful time for either the employee or employer.  Planned well, maternity leave is a manageable situation without causing angst or uncertainty for either party.

Below are the guidelines around parental leave laws and procedures.  If you need further advice, please contact OnlineHR, we are here to help and would be more than happy to assist you through this process.

At the bottom of this page, you will find maternity leave letters, forms and a checklist, to help you through the process.

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Which employees are eligible?

The following circumstances entitle an employee to parental leave under the Parental Leave and Employment Protection Act 1987:

• Where a female employee is having a baby
• The spouse/partner of an employee is having a baby
• Where two spouses/partners assume the care of a child under six years they intend to jointly adopt. They can nominate which of them is primarily eligible for the parental leave.
• An employee who assumes care of a child they intend to adopt alone.
  

To become eligible for parental leave, an employee must have:

Worked for the same employer for an average of at least 10 hours a week, including at least one hour in every week or 40 hours in every month in the six or 12 months immediately before the baby’s expected due date or the date they assume the care of a child they intend to adopt.

There are different entitlements available to employees depending on whether they meet the 12 or six month criteria.

Some employees may have worked for the same employer for more than 12 months but have an inconsistent work pattern and do not meet the average hours of work criteria over the 12 months. In this case, they can also calculate their hours of work over six months as they may still be eligible for parental leave under the six month criteria.

For further information on the different entitlements available to employees and their spouses/partners, see the summary of paid and unpaid leave entitlements.

How often can an employee take parental leave?

An employee can take parental leave multiple times, as long as six months elapse between the date they returned to work and the expected date of birth of the subsequent child. They must also meet the eligibility requirements each time.

Additional parental leave provisions in employment agreements

Some employment agreements include additional parental leave or parental leave payment provisions.  These will be unique to your workplace and are additional to the parental leave and payment provided under the law. These provisions are lawful if the employment agreement has adequate arrangements for the following:

• Who can take parental leave
• How long the various types of leave last
• How well the employee’s job is protected during and after parental leave
• What obligations, if any, the employer has to pay the employee during the leave
• What procedures the employee has to follow.

Employees can use their employment agreement provisions if they are as favourable or more favourable as those under the law. The employment agreement cannot change an employee’s eligibility for the government’s parental leave and parental leave payments, and they can receive additional parental leave payments through their employment agreement.

What are my obligations under the parental leave legislation?

You have the following responsibilities under the law:

• Inform your employee of their paid parental leave entitlements
• Consider, then approve or decline your employee’s request to take parental leave
• Accurately confirm the length of employment and income details on the employee’s application for the parental leave payment
• Confirm the parental leave arrangements with your employee.

Your employee has the responsibility to approach you and apply for leave

Your employee is in most cases expected to give you three months notice of their intention to take parental leave. In the case of adoption this requirement can sometimes not be met and a shorter notice is acceptable, or if you agree, a shorter notice period can be given. You can approve parental leave at a later stage.

Your employee should apply in writing stating:

•  What type of leave they want to take
•  When they plan to start their leave
•  The period of leave they intend to take

If they are sharing any part of their leave with their spouse/partner, the letter must also say:

•  The dates on which they and their spouse/partner plan to start and finish each period of leave
•  Their spouse/partner’s name and, if they are an employee, the name and address of their employer
•  That they are both eligible for the leave they are applying for
•  That the total amount of leave they are taking will not be more than their maximum entitlement – 14 or 52 weeks depending on whether they have a six or 12 month qualifying period.

They must attach a certificate, or a copy of a certificate, from their doctor or midwife, stating when the baby is due. If they are sharing leave with their spouse/partner they must also include a written declaration stating that they and their partner are going to share the care of the baby, or the child they are adopting.

When you receive their application

After you receive the application for parental leave, you have seven days in which to ask for any required information that has not been provided. This seven day period starts from the date on which it comes to your attention that the application is incomplete.

The employee must provide the additional information within 14 days. Once you have received all the information, you have 21 days to reply. The reply should state:

• Whether the employee is entitled to take parental leave, and if not, the reasons why not
• The main legal rights and obligations they have, especially those relating to when they can start their leave
• Whether the job can be kept open or not. If it cannot, the letter should explain that they are entitled to dispute that, and will have preference for similar jobs for six months after the end of the parental leave.
  

When can I decline leave?

An eligible employee has a statutory right to take leave. In certain circumstances you have the right not to hold the employee’s position open for them. You cannot exercise that right if the period of leave they are applying for is four weeks or less.

If the employee is seeking a longer period of leave, you can decline to hold a ‘key position’ open. For a position to be described as ‘key’, you would be required to prove that the position is critical to your business and prove that it is not possible to find a short-term replacement for the employee. It is very rare that a job cannot be kept open.

How do I handle an employee’s application for the government-funded parental leave payment?

The payments for government-funded paid parental leave are processed by Inland Revenue.  Once you have agreed on parental leave arrangements with your employee, they should make an application for paid parental leave to Inland Revenue as soon as possible.

Application forms can be downloaded from www.ers.dol.govt.nz or can be obtained by phoning the Department of Labour on 0800 20 90 20.  Click here to see if we have a copy.

The employee should complete the application form, but may require your assistance in providing details of average income over the course of the year or six months, as applicable.
You are required to verify both the length of employment and income details on the application form. You are not approving the payment, only confirming those details. It is the employee’s responsibility to forward the application form to Inland Revenue.

Confirm arrangements

Once the parental leave period has started, you must write to the employee to confirm the arrangements you have made. You have 21 days to do this after the start date of the employee’s leave. The letter must include the date the employee is to return to work and remind them to write to you 21 days before they return to work. The employee must write to you 21 days before their leave ends and let you know whether they are planning to return to work.

Are there any other obligations I need to consider?

If there are additional provisions regarding parental leave or parental leave payments in your employee’s employment agreement, or in your workplace’s policy, it is good practice to make your employee aware of them.

You should also consider your obligations under the health and safety in employment legislation, and manage any new issues that arise due to the pregnancy.

Useful Websites

If you require further information on Parental leave, try some of these websites.

 Source:  http://www.ers.dol.govt.nz/parentalleave/employers/who-is-eligible.html

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