The Parental Leave and Employment Protection Act 1987 (the Act) is New Zealand legislation that aims to:
- Set minimum entitlements with respect to parental leave for male and female employees
- Protect the rights of employees during pregnancy and parental leave
- Entitle certain individuals to up to 26 weeks of parental leave payments
Parental leave payments
The main purpose of the Act is to give natural biological parents and other individuals who are the permanent primary carer of any child under the age of six the right to gain access to government-assisted paid parental leave.
The Act clearly outlines the criteria for employers to follow and the entitlements that employees with single or multiple jobs can receive. The Act also specifies the threshold employees must satisfy to be entitled to parental leave payments and other benefits.
Parental leave and parental leave payments are separate entitlements, with different requirements and processes.
Parental leave is time off work to look after a new baby or child in the employee's care and is managed by the employer.
Parental leave payments are funded by the government and paid by Inland Revenue (IRD). Even if employees do not meet the requirements to take time off on parental leave, they might still be able to receive a payment from Inland Revenue.
Self-employed individuals can also apply for parental leave payments.
Eligibility for Parental leave
To qualify for parental leave, an employee must meet either the 6-month or 12-month test criteria:
6-month test criteria – the employee must have worked for the same employer for an average of at least ten hours a week for the six months just before the baby’s estimated due date (or the date they assume responsibility for the permanent care of a child under six years).
12-month test criteria – the employee must have worked for the same employer for an average of at least 10 hours a week for the twelve months just before the baby’s due date (or the date they assume responsibility for the permanent care of a child under six years).
Who is a primary carer?
According to the terms of the Act, a primary carer is defined as:
A female who is pregnant or has given birth to a child
Her partner, if she has transferred all or part of her entitlement to a parental leave payment to her partner (or if they have succeeded it), in which situation the partner is the primary carer for the period of time the entitlement is transferred
A person, other than the birth mother or her partner, who takes permanent primary responsibility for the care, development, and upbringing of a child who is under the age of 6 years
Primary Carer Leave
As an employer, it is important to understand the terms and conditions of the Act. By having fair parental leave policies in place, it means employees can transition into their primary carer responsibilities without fear of losing their existing employment.
Below are some key employee entitlements that must be considered when creating and implementing a parental leave policy:
Employees who are pregnant are entitled to take 26 weeks of primary carer leave if they have worked for their current employer for an average of at least 10 hours per week for at least six months prior to the expected date of birth.
The employee may generally commence their period of leave at any point from six weeks before the due date up until the due date or actual date of birth (whichever is earlier). Leave may start more than six weeks before the due date if:
- the employer and employee so agree
- the baby is born prematurely
- the employee’s doctor or midwife recommends it on health grounds
- the employee is physically unable to do their job well or safely due to the pregnancy, and the employer does not have suitable alternative work to move the employee to.
If an employee starts primary carer leave more than six weeks before the due date on health grounds or on the employer’s instructions, they retain entitlement to 20 weeks of primary carer leave after the actual date of birth, irrespective of how much leave they took before the expected date of birth. Employees retain their full primary carer leave entitlement if their child is stillborn or dies before or after birth.
During primary carer leave, the employee has no statutory entitlement to be paid by their employer. Instead, they receive parental leave payments from Inland Revenue. This is set at 100% of the employee’s ordinary weekly pay or average weekly earnings, whichever is higher, up to a cap (from 1 July 2025 to 30 June 2026 this is set at NZD 788.66 per week).
Primary carer leave must be taken in a single uninterrupted period.
The birth mother may transfer all or part of her entitlement to primary carer leave and parental leave payment to her spouse or partner, if they have primary responsibility for the child’s care and have worked for their current employer for an average of at least 10 hours per week for at least six or 12 months prior to the expected date of birth or, failing this, have been employed by any employer for an average of at least 10 hours per week for any 26 of the 52 weeks prior to the expected date of birth.
Employees who take permanent responsibility for the care of a child under the age of six years who is not their biological child, for example through adoption, are entitled to take primary carer leave under largely the same conditions as biological parents.
For spouses and partners of the primary carer - Partner’s leave
‘Partner’ is defined as the spouse or partner of the mother or nominated primary carer, as a civil union partner or a de facto partner
The spouse or partner of the primary carer, who intends to assume responsibility for the care of the child, is entitled to take partner’s leave if the employee meets the 6-month or 12-month test.
If the employee meets the 6-month test, they are eligible for up to one week of unpaid continuous leave. If the employee meets the 12-month test, they are eligible for up to two weeks of unpaid continuous leave.
During partner’s leave, the employee has no statutory entitlement to be paid by their employer. Nor do they receive parental leave payments from Inland Revenue.
Extended leave
The primary carer, or their spouse or partner, may also be eligible to take extended leave following the primary carer leave taken if they intend to assume responsibility for the care of the child. The length of the extended leave entitlement will depend on if the employee meets the 6-month or 12-month test.
If the employee meets the 6-month test, they are entitled to take leave of up to 26 weeks (including any primary carer leave taken). If the employee meets the 12-month test, they are entitled to take leave of up to 52 weeks (including any primary carer leave taken).
Extended leave can be shared between the primary carer and their spouse or partner, either taking it concurrently or consecutively.
Negotiated carer leave
If an employee does not meet the 6-month or 12-month test but they are entitled to parental leave payments, then they can make a request to their employer to take negotiated carer leave so that they can receive the payments. An employer is only allowed to refuse a request based on specified grounds.
- Rights and Obligations After Commencing Parental Leave
According to the Act, an employee’s position must be kept open: * where an employee takes a continuous period of parental leave not exceeding 4 weeks, unless there is a genuine redundancy situation or * for longer periods of parental leave unless there is a case of genuine redundancy, or where a temporary replacement is not reasonably practical due to it being a key position.
Whether the role is considered a key position will depend on the size of the employer’s enterprise and the training period or skills required to do the job.
Other factors that employers need to be aware of after commencing parental leave include:
An employee is entitled to go back to work for occasional “Keeping in Touch days” for a total of 64 hours during parental leave, with certain restrictions
An employee is not considered to have returned to work if he or she performs these 64 hours or fewer of paid work during the parental leave payment period
An employee can request the early ending or extension of parental leave in certain circumstances, but usually the employer needs to agree to it.
An employee may return to work early without the need for permission from the employer if:
- The employee or their spouse or partner suffers a miscarriage
- The child is stillborn or dies, or
- If the employee or the employee’s spouse or partner fails to become or ceases to be the primary carer of the child.
Simplify your HR and HSW
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This article is for general information purposes only and does not constitute as business or legal advice and should not be relied upon as such. It does not take into consideration your specific business, industry or circumstances. You should seek legal or other professional advice regarding matters as they relate to you or your business. To the maximum extent permitted by law, Peninsula Group disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, and reliability of the information in this article.