Primary carer leave is available to:
- female employees who are having a baby, or her spouse or partner if they have all or part of the birth mother’s parental leave payments transferred to them
- employees who are going to have the primary responsibility for the care, development and upbringing of a child under six years on a permanent basis; this may be through adoption, or (external link)home for life(external link) or whangai (but it doesn’t include on a foster care or other temporary care basis). If the employee has a spouse or partner they need to choose who will be the primary carer.
Primary carer leave can be taken for up to 22 weeks and must be taken in one continuous period. Primary care leave can’t be taken if the employee has already taken any period of parental leave or similar leave in relation to that child.
Primary carer leave starts on the due date or the date childbirth starts if the child is born to the employee. In any other case primary carer leave starts on the date that the employee becomes the primary carer in respect of the child. The employee can start their primary carer leave up to six weeks (or earlier with the employer’s consent) before the baby’s due date or the date on which the employee will become the primary carer of the child.
Pregnant women can start their primary carer leave earlier if:
- the baby is born before her scheduled leave, or
- directed by a doctor or midwife, or
- the employer considers that the pregnant employee’s work is unsafe, or her performance is inadequate, due to her pregnancy; and the employer can’t temporarily transfer her to another suitable job.
If the primary carer leave starts early (by medical or employer direction as above), the female employee giving birth may still take at least 16 weeks’ primary carer leave after the expected date of delivery birth (even if this means that she will have taken more than 22 weeks primary carer leave). In this situation the additional weeks of primary carer leave is not included in the calculation of the amount of extended leave available.
Scenario: Employee going on primary carer leaver early
Tania notifies her employer she will start her 22 weeks' primary carer leave two weeks before the due date and will take 30 weeks' extended leave (52 weeks' extended leave minus the 22 weeks' primary carer leave she is taking).
There are complications with Tania’ pregnancy and her midwife directs her to go on leave 12 weeks before her due date. Her healthy baby is born a couple of days before her due date. Tania will be able to take 16 weeks’ primary carer leave after the baby is born (a total of 28 weeks primary carer leave). In addition to this, she will still be able to take 30 weeks' extended leave (58 weeks minus 28 weeks' primary carer leave). This means Tania will have taken a total of 58 weeks' parental leave.
If the employee will be the primary carer but is not the birth mother of the child and the child is born early, then the employee will be able to take primary carer leave from the date that he or she becomes the primary carer of the child.
In addition to any parental leave taken, females who are pregnant can also take up to 10 days’ unpaid special leave for pregnancy-related reasons such as antenatal classes, scans or midwife appointments.
If you’re a spouse or partner and you meet the:
- six month time criteria you may take one week’s unpaid partner’s leave
- twelve month time criteria you may take two weeks’ unpaid partner’s leave.
You can take partner’s leave within the timeframe:
- starting 21 days before the due date of the baby, or the date your partner or spouse becomes the primary carer for a child under six years, and
- ending 21 days after the baby is born (unless the baby is discharged from a hospital more than 21 days after the birth, in which case the partner’s leave timeframe ends on the day the child is discharged) or the date your partner or spouse becomes the primary carer for the child.
If you and your employer agree, you can start your partner’s leave at any time.
An employee can’t take partner’s leave if:
- she is the biological mother and she has transferred her parental leave payment entitlements to her spouse or partner; or
- the employee is the partner or spouse of the child’s biological mother and she has transferred her parental leave payment to the employee (the employee will have primary responsibility for the day-to-day care of the child).
The amount of extended leave that an employee may take depends on whether each parent meets either the six month or 12 month time criteria. Extended leave may be shared by two parents who both meet the criteria, and they can take it at the same time or one after the other:
- Employees who meet the 12 month criteria may take up to 52 weeks extended leave (less the number of weeks primary carer leave taken, up to 22 weeks). If two parents are sharing the leave and they both meet the 12 month criteria then they share this amount.
- Employees who meet the six month criteria may take up to 26 weeks in total (less the number of weeks primary carer leave taken, up to 22 weeks). If two parents are sharing the leave and they both meet the six month criteria then they share this amount.
- If one parent meets the 12 month criteria and the other parent meets the six month criteria then the person who has only worked for six months cannot take more than 26 weeks of the total 52 weeks (less the number of weeks primary carer leave taken up to 22 weeks) available to the couple.
The one or two weeks of partner’s leave is not included in the 26 week or 52 week extended leave period.
Starting extended leave
You can start extended leave:
- at any time after you end your primary carer leave, or
- at any time after you end your partner’s leave, or
- on any date agreed with your employer, or
- if you can take primary carer or partner’s leave but choose not to, then you can start extended leave either when the baby arrives if the child is born to you or your spouse or partner, or the date you or your spouse or partner becomes the primary carer in respect of the child in all other cases.
You can finish your primary carer or partner’s leave, go back to work, and then take extended leave later.
Ending extended leave
For an employee (and/or their spouse or partner) who meets the 12 month criteria, extended leave must end by the:
- date the child turns one year if the child is born to the employee or their spouse or partner, or
- 12 months’ anniversary of the employee or their spouse or partner becoming the primary carer in respect of the child.
For an employee who only meets the six month criteria (and whose spouse or partner doesn't meet the twelve month criteria), extended leave must end by the:
- date the child turns six months if the child is born to the employee or their spouse or partner, or
- six months from the date the employee or their spouse or partner became the primary carer of the child.
Parental leave and payment eligibility table has more information on parental leave and how much you or your employees can take.
If an employee will be the primary carer of the child and would meet the work time and hours criteria to receive parental leave payments, but they can’t take primary carer leave (because they don’t meet the criteria for parental leave), they can ask their employer to give them negotiated carer leave.
Negotiated carer leave lets employees who don’t qualify for primary carer leave to take leave to care for their child and receive parental leave payments.
Negotiated carer leave is a period of unpaid leave from work which an employee can ask for:
- at least three months before the baby’s due date, if the employee or their spouse or partner is pregnant, or
- 14 days before an employee becomes the primary carer of a child.
If an employee asks for negotiated carer leave and gives their employer the correct information their employer will let them know if they agree as soon as possible and not more than one month after the employer asked.
The employer can say no if:
- they can’t reorganise the employee's work by giving it to colleagues or by recruiting extra staff, or
- the employee's absence reduces quality, performance or ability to meet customer demand, or
- they are planning to make changes to the employee's area, or
- there will be too many extra costs.
The employer must provide the employee with a written explanation for the reason/s why they say no. If the employer doesn’t provide the employee with this, the employee can contact the Labour Inspectorate for help.
Examples of when employees might be able to get parental leave payments but can’t take primary carer leave
- Jacky is a full-time permanent employee but has changed jobs in the last 5 months, so hasn’t worked for the same employer for the last six months. This means that Jacky:
- doesn’t meet the criteria for taking parental leave
- does meet the criteria for parental leave payments because the work doesn’t have to be with the same employer but Jacky will only be able to get parental leave payments if Jacky can take negotiated carer leave (and is the primary carer).
- Shayne has worked part-time for two different employers for the last three years; working one day a week for eight hours (although the day worked varies) as a permanent employee.
Shayne’s other job is casual, working when there is work available which fits in with Shayne’s other job and commitments. This means that some weeks Shayne doesn’t do any casual work, but in other weeks he works one or two eight-hour shifts. Shayne:
- doesn’t qualify for parental leave from the permanent job because eight hours per week doesn’t meet the criteria of an average of 10 hours per week with the same employer
- does meet the criteria for parental leave payments because Shayne’s total hours of work from both employers for each week in the last 52 weeks, add up to an average of 10 hours per week for at least 26 of these weeks.
Shayne must be the primary carer of the child and will need to get negotiated carer leave (from the permanent job) or resign to be able to get parental leave payments.
Policies and employment agreement provisions for parental leave
If employment agreements or workplace policies include parental leave provisions, these will only apply if the provisions are better or the same as those provided by law. But none of the provisions will apply (even if they are better than the law) unless the employment agreement has provisions on all of the following:
- who can take parental leave and when
- how long the various types of leave last
- how well the job is protected during and after parental leave
- whether or not the employer is going to pay the employee during the leave
- what procedures the employer and employee have to follow.
If the employment agreement does contain all of the above, then none of the provisions under the Parental Leave and Employment Protection Act 1987 relating to these aspects apply; the provisions in the employment agreement apply.
If the employee's spouse or partner is also taking leave (eg under their employment agreement), the employee can’t take a period of leave under the legislation if the total amount of leave that both are taking would be more than they would get in the Act.
How to notify an employer about taking parental leave.