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Does paternity leave apply to unmarried male employees?

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Section 47A (1) of the Employment (Amendment) Act (2021) of the Laws of Malawi entitles a male employee, once every three years, to at least two weeks paternity leave on full pay. But what is paternity leave?

Paternity leave is generally a short time of leave for the father immediately following childbirth. Its aim is to enable fathers to assist the mother to recover from childbirth, which is also crucial in establishing breastfeeding, taking care of the newborn as well as other children, and attending to the registration of the birth and other family-related responsibilities.

Research suggests that fathers’ leave, men’s take-up of family responsibilities and child development are related. Fathers who take leave, especially those taking two weeks immediately after childbirth, are more likely to be involved with their young children (Huerta, 2013). This is likely to have positive effects on gender equality in the home, which is the foundation of gender equality at work.

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By drawing fathers into the daily realities of childcare, free of workplace constraints, extended time off [immediately after the birth] provides the space necessary for fathers to develop the parenting skills and sense of responsibility that then allows them to be active co-parents rather than helpers to their female partners. This shift from manager-helper dynamic to that of co-parenting creates the opportunity for the development of a more gender-equitable division of labour (Rehel, 2014).

But what is the eligibility for paternity leave? Unlike in Malawi, in some African countries with paternity leave provisions, the right to paternity leave is linked to a minimum time-in service period, as with maternity leave. For instance, the following countries make the right to paternity leave contingent on previous employment: Mauritius (12 months), South Africa (four months) and the United Republic of Tanzania (six months). Above all, in Malawi, one has to be a male person still employed by an employer on the day the child is born to qualify for paternity leave. The Malawian law on paternity leave is, however, not clear on whether new employees whose spouses are already pregnant qualify for paternity leave.

A male employee might be eligible for paternity leave if they are responsible for the child’s upbringing and either as a biological father or their partner is having a baby or adopting a child.

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Does this kind of leave only apply to married male employees? The immediate answer is ‘NO!”. Although this leave and pay is called ‘Statutory Paternity Leave’, it is not exclusively for married males. Paternity leave and pay can be claimed by one of the people within any couple, whether in a civil partnership or co-habiting. In other words, where one person in the couple is giving birth to, or adopting, the child, paternity leave and pay may be due to the other.

Can a male employee go on paternity leave if their partner had a miscarriage or the baby dies? Well, if the baby dies before the end of the 24th week of pregnancy, it is called a miscarriage. If your baby dies after the beginning of the 24th week of pregnancy it is called a stillbirth. The employee will get a certificate of stillbirth. In the same way as maternity leave, in the case of miscarriage, the male employee will not be entitled to paternity leave or pay. If there is a stillbirth, or if the baby is born alive but later dies, even after a few seconds (and even if this takes place before the 24th week of pregnancy), the male employee is entitled to all his paternity rights.

What can an employee do when his employer refuses to grant him paid paternity leave or invokes a disciplinary inquiry over it? Section 47A (2) of the Employment (Amendment) Act (2021) of the Laws of Malawi provides that: “Where an employee is on paternity leave, his benefits and entitlements shall continue uninterrupted and his period of employment shall not be considered to have been interrupted, reduced or broken”. What this means is that, if the employee is entitled to paternity leave, his employer should not refuse to give him leave. The employee should also not be treated badly or victimised for taking paternity leave. The employee should consult the HR department if, after discussing the matter, the line manager refuses to allow them to take paternity leave.

Can an employee take paternity leave while they are on separation with their partner? If the employee has separated from their partner but have ongoing parental responsibility for the child, they can still get paternity leave.

If an employee wants to extend their paternity leave more than required by the law to care for their new baby or child, they could talk with their employer about taking annual leave or unpaid leave.

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