What are the legalities around parental leave?

At some point most employers will have a worker ask for parental leave. So what happens when a parental leave request is made? The Parental Leave and Employment Protection Act 1987 (PLEP Act) sets out detailed requirements for employees' requests. These must:

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  Be in writing
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  Be at least three months before the baby is due
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  State when the leave will start and its duration
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  Be accompanied by a medical certificate verifying the expected birth date.

Once you have this request, you have 21 days to give the employee written notice stating whether they are entitled to parental leave under the PLEP Act and whether you can keep their job open until they return. You also have to provide the employee with information about parental leave and their rights. This can be found on the Department of Labour website.

Who can take parental leave?

Birth mothers, their partners and adoptive parents are all eligible. Female employees or adoptive parents are eligible if:

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  They are having a baby or adopting a child under six years old
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  They have worked for the same employer for an average of 10 hours or more per week and at least one hour every week or 40 hours every month for at least:
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  Six months before the baby's expected date
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  Twelve months before the baby's expected date.

Some entitlements differ if the employee has qualified after working for six months continuously or for 12 months continuously.

1. Maternity leave: 14 weeks for both

2. Extended parental leave: Eligible for 52 weeks (including maternity leave) after 12 months

3. Partners/ paternity leave: One week after six months of employment and two weeks after 12 months

4. Paid parental leave: 14 weeks at a maximum of the rate specified by Government for both

5. Special leave for reasons related to pregnancy: Up to 10 days, if eligible for maternity leave, for both.

Paternity leave applications must include a written assurance from the pregnant partner that the employee is her spouse or partner and intends to assume care of the child.

If both work for the same employer, employees eligible for maternity leave may also choose to transfer some or all of their entitlement to their spouse or partner provided that person has been employed by the same employer for an average of 10 or more hours a week for the 12 months before the due date.

Parental leave can be taken more than once, as long as there is six months between the date of returning to work and the expected date of birth of the subsequent child.

Parental leave entitlements

Parental leave is not paid by the employer. It is an entitlement to unpaid leave from employment.

Special leave is unpaid leave which can be taken by a pregnant mother before maternity leave begins, for reasons connected with her pregnancy, such as doctors' appointments.

Paid parental leave

To receive paid parental leave, the employee must apply separately to Inland Revenue for parental leave payments. The maximum level of payment is $475.16 per week before tax. An employee is entitled to either their gross weekly rate of pay or $475.16, whichever is lower.

Some employment agreements include parental leave provisions paid for by the employer. These are not in Federated Farmers' agreements. However, these cannot take away from an employee's eligibility for Government parental leave.

Obligations to keep job open

You may engage a temporary employee on a fixed-term agreement or disperse the absent employee's duties to other staff. If you engage a temp, they must have written notification stating they are filling in for a permanent staff member on parental leave.

There is a presumption that unless an employer can prove a temporary replacement is not reasonably practicable due to the key nature of a position, or a redundancy situation has arisen, an employee's position can be kept open if their parental leave period exceeds four weeks. We recommend seeking legal advice if employers are considering restructuring or anything which would prevent an employee on parental leave from returning to their role.

For more information on parental leave, or specific queries, please call 0800 FARMING for free, independent legal advice or see www.dol.govt.nz/er/holidaysandleave/parentalleave/employers/.