Under the Parental Leave and Employment Protection Act, parental leave is available to employees who are having a child, and to their partners. It is also available to employees, male or female, who are adopting a child under five years old.

To apply for parental leave under the Act the employee must have worked for the same employer for an average of  at least ten hours a week for the immediately preceding twelve months, or the immediately preceding six months.

Applications for parental leave must be in writing to the employer, in most cases at least three months in advance. There are some exceptions for medical or work problems during pregnancy, and special provisions for adoption. Employees applying for parental leave must supply a certificate from their doctor.

Leave under the Act is mostly unpaid.

Special Leave

• Up to ten days for women during pregnancy for reasons connected with pregnancy (e.g. antenatal checks).

Maternity Leave

• Up to fourteen continuous weeks for the mother, which may start up to six weeks before the expected date of birth or adoption. In certain cases it can start earlier.

Paternity Leave

• Up to two continuous weeks’ unpaid leave for the mother’s partner around the expected date of birth or adoption, provided he has worked for the same employer for an average of at least ten hours a week for the immediately preceding 12 months (or up to one continuous weeks’ unpaid leave where he has worked for the same employer for an average of at least ten hours a week for the immediately preceding 6 months).
• Up to 52 continuous weeks unpaid leave, less any maternity leave taken, is available in the twelve months after birth or adoption provided the mother has worked for the same employer for an average of at least ten hours a week for the immediately preceding 12 months.
• Extended leave may be shared with the father, provided he has worked for the same employer for an average of at least ten hours a week for the immediately preceding 12 months, but the total amount of extended leave must not exceed 52 weeks.

Where an employee takes parental leave of four weeks or less, their job must be kept open. When an employee applies for extended leave (up to 52 weeks) the Act presumes that the employer will be able to grant the leave and keep the employee’s position open. The Act allows for the possibility that the employer may decide that the job concerned cannot be kept open because it is a key position and cannot be filled by a temporary replacement (Note that justifying that a position cannot be kept open is an extremely difficult test to satisfy). Many years of case law on this issue shows that it is extremely rare for an employer to win such a case on the grounds that a so-called “key position” cannot be kept open. The employee has a right to challenge any decision not to keep their position open.

If parental leave of over four weeks is taken and the employee has accepted that their job cannot be kept open, the employee will be entitled to a preference period of six months after the parental leave finishes, when the employer must offer her or him any available job substantially similar to the previous one.

Employers may not dismiss an employee for being pregnant or for applying for parental leave.

Employees who are dismissed or given notice of dismissal for one of these reasons have a special right to go directly to the Employment Relations Authority. They can ask for a temporary order to give them their job back, or to cancel the notice of dismissal.

The key rules and procedures for dealing with parental leave situations are as follows:

• The eligible employee must give employer 3 months written notice of when she wants to take maternity leave – if the employee fails to give at least 3 months notice the employer does not have to grant the leave but must still consider whether or not it is reasonable not to:
  • The employee’s letter must specify name, type of leave being applied for and dates she wants to take the leave.
  • If the mother wants to share leave with partner, then partner must give their employer written notice to do so (also at least 3 months in advance).
  • The employee(s) must attach a copy of medical certificate from the mother’s doctor or midwife stating the expected date of birth.
• The employer must ask within 7 days of receiving initial application for any additional information required to consider the application.
• The employer must reply to the application within 21 days advising the employee if she is eligible for Parental Leave or not and if the job can be held open.
• The employer must also provide the employee with written information about the parental leave entitlements available under the Act. www.ers.dol.govt.nz/parentalleave
• The employer must, within 21 days of the employee’s parental leave commencing, write to the employee confirming:
  • When the employee’s parental leave is due to end.
  • When the employee can return to work.
  • The latest date by which the employee must advise if she is returning to work or not.
  • What the employee’s rights are if she wants to return to work early before the end of her leave. www.ers.dol.govt.nz/parentalleave
• An employee who is already on parental leave must give to the employer at least 21 days written notice stating whether or not the employee will be returning to work at the end of the employee’s parental leave. In the case of a miscarriage, stillbirth, death or adopting out of the child, the employee is entitled to return to work early but is still required to give the employer 21 days notice. In other circumstances where the employee wishes to return to work early (e.g. for financial reasons) he/she may do so but only with the consent of the employer.

Eligible employees are also entitled to claim up to 14 weeks of their parental leave entitlement as paid leave. The payment, which is funded by the taxpayer through the Inland Revenue Department, can be taken by one parent or shared between two eligible partners (including partners in same sex relationships). The payment provides replacement income where the parent is taking parental leave from their existing employment.

Employees are eligible for parental leave payments if they have been employed by the same employer for an average of at least ten hours a week for the immediately preceding 12 months, or the immediately preceding 6 months.

Where the partner works (and the mother does not) the payment is not transferable to the partner because the mother has no entitlement to transfer in the first place. Those who qualify will receive either a gross weekly payment of the amount specified (www.ers.dol.govt.nz/parentalleave) or 100% of their previous weekly earnings, whichever is the lower. Like wages the payment is taxed. If an employee has more than one job, they are entitled to a total of the amount specified on, not that amount for each job.

Employers have a duty to fill in the employee’s paid parental leave form so she can receive her paid parental leave entitlement from the state.

Employees wishing to receive paid parental leave entitlement must do so on the official application form which they can obtain from their maternity care provider (doctor or midwife), the Department of Labour or their union. The employee supplies the application form to his/her employer who completes it, hands it back to the employee who must then post it to the Inland Revenue Department. The IRD will make payments by direct credit to employee’s bank account.