Parental leave is a statutory entitlement for employees under the Parental Leave and Employment Protection Act 1987 (‘PLEPA’). Parental leave allows eligible employees time off from work to care for a new child.
For employers, parental leave presents both operational and compliance challenges, particularly regarding eligibility, notice requirements, and managing employee pay related matters and job security during a period of parental leave. Failure to comply can result in enforcement and compliance action, legal disputes, and reputational damage.
Parental Leave Eligibility Test
Employees are eligible for parental leave if they meet the following criteria:
Primary Carers Leave – Up to 26-weeks Parental Leave Entitlement
They have worked for the same employer for an average of at least 10 hours per week over previous six months immediately before the expected birth or before they become the primary carer of a child under six.
Extended Leave – Up to 52-weeks Parental Leave Entitlement
They have worked for the same employer for an average of at least 10 hours per week over the previous 12-months immediately before the expected birth or before they become the primary carer of a child under six.
Types of Parental Leave
Minimum parental leave entitlements for employees include:
Primary Carers Leave: Up to 26-weeks parental leave, if the eligibility test is met.
Extended Leave: Up to 52-weeks parental leave, if the eligibility test is met.
Partners Leave: 1- or 2-weeks unpaid partner’s leave, depending on the eligibility test.
Special Leave: Pregnant employees can take up to 10 days unpaid special leave for pregnancy-related reasons before starting parental leave.
Negotiated Carer’s Leave: Allows employees who do not meet the standard eligibility criteria to arrange parental leave through agreement with their employer.
Key Employer Obligations
Employers must keep an eligible employee’s position open during a period of parental leave. This is typically managed using a fixed-term employment agreement, including a specific parental leave cover clause.
There are some very restricted exceptions to an employer’s obligations to keep an employee’s role open during parental leave such as key roles that cannot be temporarily filled or positions made redundant through genuine business changes, including consultation and redundancy. However, such circumstances can often present risk and are vigorously scrutinized when disputes occur, so employers should be extremely cautious when determining not to hold an employee’s position open. If required, seek professional assistance from Employer Pro for support.
Even in these cases, employees remain eligible for Parental Leave Payments if they meet the IRD’s criteria. Additionally, a 26-week ‘period of preference’ applies: if a similar position becomes available during this time, the employee must be offered it before anyone else.
IRD Parental Leave Payments
There is no statutory requirement for employers to pay parental leave, though many employers in New Zealand choose to provide additional paid leave or parental leave benefits through employment agreements or workplace policies.
Parental leave payments are administered by Inland Revenue Department (‘IRD’) and are paid in a continuous period of up to 26 weeks from the child’s due date, birth, or the date the child comes into care.
From 1 July 2025, the maximum gross weekly payment is $788.66 a week. Application forms and further information are available from IRD.
An employee will qualify for parental leave payments where:
They are the primary carer of a child under 6, and
Worked for an average of at least 10 hours each week over any 26 of the 52 weeks before a child’s due date, or date they become a primary carer.
Payment eligibility is separate from parental leave eligibility, so some employees may qualify for payments but not for primary carers leave, or extended leave.
Sharing Parental Leave
Shared parental leave occurs when the primary carer (typically the birth mother) transfers part or all their parental leave to their partner. However, they must both be eligible under eligibility tests for primary carer’s leave or extended leave.
Employee Notice Requirements
Employees must give written notice at least 3-months before the child’s birth or assumption of care, including:
Type of leave, start/end dates, and duration.
Any shared leave arrangements with a partner.
Supporting documentation (e.g., medical certificate).
Employers must respond within 21 days, confirming:
Whether leave is approved or reasons it is not.
Key legal rights, including job protection and start dates.
If the position cannot be kept open, advise the employee of their 26-week preference for similar roles.
Commencing Parental Leave
Primary carer’s leave can begin up to six weeks before the child’s expected arrival, or earlier if:
The employee and employer agree.
A doctor or midwife directs it.
The pregnant employee cannot safely or effectively perform their work, and no suitable alternative is available.
Under section 14 of the PLEA, an employer can direct a pregnant employee to start primary carer leave early if it is necessary for the employee’s health and safety or because the employee can no longer perform their work safely or effectively. Any direction should be informed by medical advice and, where possible, considering reasonable alternatives such as temporarily changing an employee’s duties by agreement.
Keeping-in-Touch Days
Employees can work up to 64 paid ‘keeping in touch’ hours during parental leave, but not within the first 28 days after birth, or they may be considered back at work and lose parental leave payments if they breach this requirement.
Return to Work
Employees must confirm 21 days before parental leave ends if they will return; if not, employment ends from the start of parental leave.
Annual Holiday Entitlement and Parental Leave
Ensure employees understand their holiday entitlements and balances on returning from parental leave, including relevant workplace policies or employment agreement provisions.
Unused holidays from before parental leave are calculated as usual, regardless of when taken.
Holidays accrued during leave or in the 12 months after returning are paid based on the employee’s average weekly earnings over the prior 12 months, which may be less than their normal pay initially. Over time, holiday pay will return to its full value.
Case Law Snapshot – What Recent Decisions Tell Employers?
Ms Zelinda Doria, a beauty therapist employed at Diamond Laser Medispa in Taupō, was told to begin primary carer (parental) leave just seven weeks into her pregnancy in late 2016. She was subsequently barred from the workplace and ultimately resigned. Because she had been forced onto leave so early, she was ineligible for paid parental leave payments administered by Inland Revenue.
Ms Doria brought a claim to the Human Rights Review Tribunal (HRRT), alleging that her employer’s actions constituted unlawful pregnancy discrimination under the Human Rights Act 1993, and that she had been treated detrimentally because of her pregnancy. Her employer argued the decision to put her on early parental leave was justified under section 14 of the PLEPA.
The HRRT found that the employer’s actions were unjustified and discriminatory. The Tribunal concluded the employer had not properly engaged with Ms Doria, sought medical or risk assessments, or considered alternatives to early parental leave such as adjusted duties, special leave, or annual leave. The Tribunal held that forcing Ms Doria onto parental leave without consultation or reasonable justification, and effectively coercing her resignation, was unlawful discrimination based on pregnancy, a prohibited ground under the Human Rights Act 1993.
The Tribunal awarded Ms Doria approximately $99,770 in total, comprising:
$75,000 for humiliation, loss of dignity, and injury to feelings.
$15,467 for pecuniary losses.
$9,303.30 for loss of benefit, including lost paid parental leave eligibility.
These amounts excluded the employers own legal costs, which would have been significant due to engaging the assistance of a barrister.
Employer Takeaway: Employers must not impose parental leave unilaterally or without reasonable justification, consultation, and evidence. Decisions that disadvantage employees because of pregnancy, especially where statutory entitlements like parental leave payments are affected – may be unlawful and attract significant compensation awards.
Kristy Milne was employed as a security officer at Tiwai Point. When she went on parental leave, the contract for providing security services transferred from her employer (SCS) to Allied Investments Limited (AIL). During her parental leave, AIL assumed operations and told Ms Milne she could not elect to transfer into the new employer’s workforce because she lacked a required licence at that time. AIL then failed to offer her a role substantially like her previous position when she was due to return from parental leave.
The Employment Relations Authority (‘the Authority’) held that AIL’s failure to respect Ms Milne’s right to transfer and to offer her a position on terms substantially like her previous job amounted to an unjustified dismissal. The Authority found that the employer’s actions breached section 49 of the PLEPA, which protects an employee from being dismissed during parental leave unless specific statutory exceptions apply.
The Authority found Ms Milne was unjustifiably dismissed, awarding her over $30.000 in financial remedies (excluding the employer’s own legal costs).
Employer Takeaway: This case highlights that employers must be especially cautious when an employee’s role changes during parental leave, including where contracts or business arrangements change. If an employee on parental leave has a statutory right (e.g., to elect to transfer or return to a similar role), employers must honour that right. Failure to do so can result in findings of unjustified dismissal and significant remedies being awarded against employers.
Amy de Vries v the Ministry of Business, Innovation and Employment [2024] NZERA 768
The employee sought a review of a decision declining her application for paid parental leave payments under the PLEPA on the basis she did not meet the statutory minimum hours and weeks eligibility threshold.
Ms de Vries applied for paid parental leave after her baby’s due date. To qualify, parents must have worked an average of at least 10 hours per week for 26 of the 52 weeks before the due date. Ms de Vries had worked a total of 296 hours in that period, but those hours did not equate to the required 10-hour weekly average over 26 weeks.
The Authority upheld the decision to decline payment. It confirmed the statutory eligibility criteria are strict and cannot be overridden by the Authority – even for compassionate or exceptional circumstances. Because Ms de Vries did not meet the required minimum hours pattern, there was no legal basis for the Authority to set aside the statutory test. Her application for parental leave payments was dismissed – she did not receive the payments she sought.
Employer Takeaway: This case reinforces that eligibility for parental leave payments is based on a strict statutory test under PLEPA.
Compliance Warning
Employers must comply with statutory parental leave obligations under the PLEPA. Failure to correctly manage issues like parental leave eligibility, notice requirements, job protection, or restructuring processes, among other areas can lead to protracted disputes, financial penalties, personal grievance claims and reputational damage.
This article is provided for general information only and does not replace professional advice. Employers should seek advice specific to their circumstances from Employer Pro if in doubt on their legal obligations associated with managing parental leave. Employer Pro has a range of employer focused resources and services available through our competitive Employer Protection Packages.
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