Now that businesses are starting to reopen their doors, employers have had to conduct risk assessments and update health & safety policies to include Covid-19 regulations. While this transition back to work has been happening, another significant change has been in the works. Amendment No. 11 to the Employment (Jersey) Law 2003 took effect on 28 June 2020 after being approved by the States Chamber in October 2019. The new amendment extends parental rights of employees in an attempt to balance the rights of all parents.
Parental rights have been updated since the family friendly laws were first implemented in 2015, including maternity leave, paternity leave, and antenatal care. Pregnancy and maternity are protected characteristics under the Discrimination (Jersey) Law 2013, so employees who are pregnant or have children cannot be treated unfairly by employers.
What’s New?
Amendment No. 11 aims to introduce new protections and update the rights of parents to reflect the way families are evolving in the modern day. Under this amendment, new parents are described as:
- Mother of the child;
- Father of the child;
- Partner of the child’s mother, if they will have responsibility for the child’s upbringing;
- Adoptive parents; and
- Intended parents in a surrogacy situation.
Parental leave
All parents will be entitled to 52 weeks parental leave, of which six weeks to be paid at 100 per cent pay by their employer with no qualifying period.
The six weeks paid leave for birth mothers will be mandatory immediately after the child is born, but there is no specified period for when partners, adoptive and surrogacy parents must be paid their six weeks.
Parents have the option to take the 52 weeks leave as a whole block or split it into up to three blocks over the two year period following birth or adoption.
Different time periods for notifying employers about parental leave requirements apply to certain employees, which are outlined below:
- Birth and surrogate parents – 15 weeks before the first intended day of leave.
- Adoptive parents – within seven days of receiving notification they have been matched with a child.
All employees must indicate how they plan to take their leave, and what dates will apply.
If a parent needs to make any changes to their parental leave blocks, they are required to submit a written request to their employer 42 days prior to the intended change taking effect. If an employee chooses to make changes to their leave dates or return to work early, the employer is now required to take ‘reasonable steps’. This requirement means employers must attempt to accommodate the change while taking into account the effects this could have on the business.
Antenatal appointments
Birth mothers are currently entitled to unlimited paid time off to attend antenatal appointments, and this remains the same under the new amendment. Unlimited attendance has been extended to all other parents, including surrogate and adoptive parents, with up to ten hours paid. Employers are not obligated to pay for additional time past ten hours.
Breastfeeding
The new amendment introduces the right for birth mothers to request a temporary variation to their employment terms and conditions to allow for work breaks to breastfeed or express milk. Employers are required to take reasonable steps to provide breastfeeding facilities, and ensure that breastfeeding breaks are paid for the first 52 weeks after birth.
Health & Safety
When an employee notifies their employer they are pregnant, the employer must conduct a pregnancy-specific risk assessment to evaluate the workplace. If the risk assessment discovers a potential issue that would prevent an employee who is pregnant, breastfeeding, or has recently given birth from completing their normal duties, the employer has a duty to make reasonable adjustments. If they are unable to accommodate the employee in alternative duties or make necessary changes, the employee is entitled to paid leave.
Need Advice?
Employers have many questions about the new amendments. I’ve answered some of the most common ones below to help you get a better understanding of how this update will affect your business.
Q: Do employees who have recently given birth, adopted, etc. get the new provisions?
The law starts on 28 June, therefore only those whose give birth adoption, or become surrogate parents from that date will get the new provisions.
Q: What happens if an employee has a second baby and they have not exhausted all of their entitlements from the first child?
A: The entitlements are added up. It is possible for an employee to take a year off, have a second child during that year and be able to take a second year of leave.
Q: Do I still need to provide holidays and sick pay during parental leave?
A: It depends on what your contract states, but all contractual terms will continue to apply during parental leave. For example, if there is a contractual right to 25 days of paid holiday per year, this will continue to be valid.
Q: If I recruit someone who has recently given birth, do they bring their entitlements with them?
A: No, the new law has clarified that parental leave entitlements are not transferable to a new employer.
Q: Can I claim back money paid to an employee who takes paid parental leave and does not return to work?
A: No, employers are unable to claim back money paid to new parents as these are statutory payments.
Q: Do I have to provide facilities for breastfeeding?
A: If an employee who wishes to return to work and breastfeed or express milk, the employer needs to take all reasonable steps to facilitate this. This may include amending duties, hours, workplaces, etc. The question of reasonableness is different for each individual employer. However, there is no need to set up a permanent facility as it may not be necessary.
Q: Do I have new responsibilities for the health and safety of pregnant employees?
A: As soon as an employee informs you they are pregnant, a specific risk assessment should be undertaken and if necessary, a DSE assessment. These assessments may need to be reviewed as the pregnancy progresses. Risks should ideally be removed or alternative work offered. If this is not possible, paid suspension is a possibility.
Q: If the employee refuses an alternative role, do I still have to pay them?
A: Possibly not, but you should seek HR advice before taking the step of putting a pregnant employee on unpaid suspension.
What Do Employers Need to Do?
There are a few things employers need to prioritise and consider to ensure they are ready for this amendment to be implemented.
Rewrite – Your employee handbooks and workplace policies will need to be updated in line with the new law, as well as creating pregnancy-specific risk assessments.
Communicate – Any employees expecting to give birth, adopt, or become surrogate parents over the next few weeks need to receive clear communication as to their entitlements. You should also consider how you will communicate requirements to the rest of your team, and whether anyone needs specific training on one or more elements of the law.
Costs – Employers, particularly those from smaller businesses, need to budget for potential costs relating to parental leave as the number of paid weeks and entitlements have increased. The Government of Jersey have launched an Interim Parental Payment Scheme to provide subsidy payments for employers with staff taking paid parental leave under the new conditions. This scheme will also support sole traders and other business owners who take this leave. For more information, please visit the Government of Jersey website.
The best way to ensure your business is ready for the implementation of this amendment is to speak with a qualified HR or Health & Safety professional. Our team can help draft new policies and documents for your business, conduct risk assessments, and offer solutions to give you peace of mind.
For guidance or more information, please contact me at lorna.pestana@lawatworkci.com or call 887088.
