Employees with caregiving duties: what the law says about Family Responsibility Leave

Employees supporting families, including extended care responsibilities, may be denied leave incorrectly, despite clear protections in South Africa’s labour law.

That’s according to labour law specialist Andrew Levy, who clarified that employers cannot override the Basic Conditions of Employment Act (BCEA), even through internal policies or contracts.

Employers cannot override the law

Levy said the BCEA clearly defines who qualifies for family responsibility leave, and it includes more than some company policies suggest.

The law covers leave in cases involving a parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

He stressed that employers cannot narrow this definition.

“An employer cannot overrule anything in the BCEA by way of their own contract… You cannot contract outside of the law.”

What employees should do if leave is refused

Employees who are denied family responsibility leave for valid reasons have grounds to challenge the decision.

Levy recommends a measured approach.

“Very politely, but in writing… attach an extraction from the BCEA… and ask [the employer] to reconsider.”

If that fails, employees can escalate the matter to a labour inspector. He added that there are protections in place against victimisation for lodging a complaint.

Limited days, but flexible use

The BCEA provides a minimum of three days of family responsibility leave per leave cycle.

This applies only after four months of employment.

The leave does not accumulate year to year, but employees can use the three days across different qualifying events within the same cycle.

“There’s no obligation to pay more,” Levy said, noting that employers may offer more generous leave, but cannot offer less.

Who qualifies, and who does not

While the law includes close family members such as parents, children and grandparents, it does not extend to broader family structures.

Uncles, aunts and cousins are not covered, even in cases where employees may be primary caregivers.

However, Levy said employers are free to be more flexible.

“The BCEA works as a floor… You cannot provide for less… but you can always do more.”

Caring for adult children

The law does not explicitly define a child’s age in this section, but Levy indicated that under 18 is generally accepted.

Cases involving adult children may depend on employer discretion.

A ‘reasonable employer’, he said, may still grant leave depending on the circumstances, especially where the employee remains the primary caregiver.

Emergencies and proof requirements

Family responsibility leave is designed for unexpected events, meaning advance notice is not always possible.

“The law doesn’t require full warning,” Levy said.

Employers may, however, request ‘reasonable proof’ after the fact. This could include a doctor’s note, hospital record, or other supporting documents.

For more information, listen to Levy on CapeTalk’s Lunch with Pippa Hudson using the audio player below: