Parental Leave Law

the employment law behind parental leave

Parental Leave

The Parental Leave and Employment Protection Act 1987 provides minimum entitlements, rights and protections for employees during pregnancy and while they’re on parental leave. Self-employed people may also be able to access parental leave entitlements as well depending on their situation and eligibility.

New parents who are employed may be legally entitled to parental leave in order to care for their new born child, or for an adopted child under the age of six. There is also the option for parents to share and/or transfer some, or all of their parental leave entitlement to their spouse or partner.

In some cases other people who are not a child’s parents may also be eligible for parental leave, e.g. if another family member took over the primary care and responsibility of a child.

An Employer’s Primary Legal Obligations

The primary obligation of an employer where an employee is eligible and takes parental leave it is that they must keep the employee’s position open for them duration of their parental leave.

There are very limited exceptions where an employer does not have to do keep an employee’s position open for them. These are either because:
  • The employee’s position is a key one in the employer’s business and it is not possible to secure a temporary replacement;
  • The employee’s position becomes redundant as a result of a genuine change management process.
If the employer determines that an employee’s job is a key position and cannot be kept open, or there is a redundancy situation, then that wont effect an employee receiving parental leave payments – provided they meet the eligibility criteria for payment. In addition, there is a 26 week 'period of preference' at the end of their parental leave that applies for both of these situations. This means that at any time during this 26 week period, if the employer has a position that is similar to the employee’s position, or one becomes available then they must offer it to the employee first before anyone else.

Parental Leave Payments

This is paid for by the Inland Revenue Department (IRD) and is paid for in one continuous period of up to 26 weeks from either the due date of a child, when the child is born, or the date the child comes into care. From 1 July 2023, the maximum weekly rate of parental leave payments is $712.17 gross per week.

Applications forms for IRD funded parental leave payments for employees and self-employed people, along with more information about this form of payment can be found here.

An employee can get parental leave payments from the IRD if:
  • They are going to be the primary carer of a child under 6 years (through giving birth or otherwise taking permanent primary responsibility for the care, development and upbringing of the child, e.g. through adoption); and
  • Has been employed as an employee (this doesn’t have to be for the same employer) for at least an average of 10 hours per week over any 26 of the 52 weeks just before:
    • the child’s due date (if the child is being born to you or your spouse or partner); or
    • in any other case of a child under six years, the date when you or your spouse or partner becomes the primary carer of the child.
This eligibility test for payments is different from the six and twelve month criteria for eligibility for parental leave, i.e the amount of time an employee can take off on parental leave. This means that some employees who aren’t eligible to take parental leave can still get parental leave payments.

There is no legal obligation in New Zealand for an employer to pay an employee for parental leave. However, sometimes employers choose to do so, i.e. offer additional benefits over and above the legal minimum for parental leave by way of contractual terms of employment, or a workplace policy.

Forms of Parental Leave

The main forms of parental leave are:

Primary Carer’s Leave: The primary carer of a child under six is entitled to unpaid leave for up to 26 weeks if they’ve worked for either the ‘six, or twelve month qualifying period’, which are explained in the next section below.

Extended Leave: This only applies where the ‘twelve month qualifying period’ is met. If so, then it provides that employees with a further 26 weeks of Extended Leave following the taking of the initial 26 weeks Primary Carer’s Leave. For completeness, the maximum amount of parental leave whether Primary Carer’s Leave and/or Extended Leave that a employee can take off is 52 weeks.

Qualifying Periods - Eligibility Criteria for Parental Leave

  • Primary Carer’s Leave (the six month test)
    An employee meets the ‘six month test’ for parental leave if they will have been employed by the same employer for at least an average of ten hours a week in the six months just before the due date of the child, or the date they or their partner becomes the primary carer of the child under six permanently.
  • Extended Leave (the twelve month test)
    An employee meets the ‘twelve month test’ for parental leave if they will have been employed by the same employer for at least an average of ten hours a week in the twelve months just before the due date of the child, or the date they or their partner becomes the permanent primary carer of the child under six.

Sharing Parental Leave

Two parents can share Primary Carer’s Leave or Extended Leave. However, they must both meet either the six or twelve month eligibility criteria to get 26 or 52 weeks of parental leave, respectively. The eligibility criteria is explained above.

Other Types of Parental Leave

Special Leave: Before a pregnant employee takes Primary Carer Leave, they can take up to total of 10 days’ unpaid special leave for reasons connected to their pregnancy, e.g. for medical appointments.

Partners Leave: Allows the partner of a pregnant person either one, or two weeks unpaid leave, which can be taken on or around the expected date of a child, or assumption of care.

Negotiated Carer’s Leave: This allows employees to negotiate parental leave if they are not otherwise eligible for it.

Notice Requirements

If an employee wants to take parental leave, then they must write to the employer at least three months before the expected due date, or assumption of care of a child. The employee has the obligation to notify their employer of matters including the following:
  • the type of parental leave sought
  • start and finish dates of parental leave
  • how long the period of leave will be
  • any sharing arrangements and dates between the employee and their spouse (if sharing parental leave), including information relevant to their partner’s employment
  • accompanying documentation for verification purposes, e.g. a medical certificate from a doctor or midwife to support the application for parental leave.
Once the employer has all the information, then it must respond to the employee’s request for parental leave within 21 days. The response must include:
  • whether the employee can take parental leave and, if not, the reasons why
  • the main legal rights and obligations the employee has - particularly in terms when they can start parental leave and whether their position can be kept open
  • if the employee’s job can be kept open. If it can’t, advising the employee can disagree with this and also that the employee will have preference for similar jobs for 26 weeks after the end of their parental leave.
There are sample letters for both employees and employers that can be found on Employment New Zealand’s website.

Starting Parental Leave

Primary carer leave can start up to six weeks before the expected date of the child's arrival, or earlier if:
  • agreed by the employee and employer
  • directed by a doctor or midwife
  • it becomes too hard for a pregnant employee to do their job safely or adequately and no other suitable work is available at an earlier date specified by the employer.

Returning to Work

Your employee needs to let you know at least 21 days before the end of their parental leave whether or not they’re going to return to work.
An employer is not under any legal obligation to allow the employee to return back to work on different conditions, e.g. an employee asking for. reduced hours or days. However, an employer may consider requests on a case-by-case basis via a temporary or permanent variation to an employee’s terms of employment following good faith bargaining.

If an employee decides not to return to work, e.g. if they resign, then their employment is deemed to terminate at the date they started their parental leave.

Keeping-in-Touch Days

'Keeping-in-touch days' allow employees to perform some paid work on parental leave while still receiving parental leave payments, so long as the employer agrees. An employee can perform up to a total of 64 hours of paid work without this counting as a return to work and without stopping their IRD payments. However, they cannot utilise any keeping-in-touch days until their child is at least four weeks old.

Additional Information

For more information please read Employers Assistance Ltd's comprehensive eBook on parental leave: