Holidays (Bereavement Leave for Miscarriage) Amendment
Tim Blake, Senior In House Solicitor, Hospitality New Zealand
The Holidays Act has been amended by the Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No.2), passed on 24 March, granted royal assent last week, and deemed effective as of March 31 2021.
The purpose of the Bill is to ensure women and their partners have the time they need to deal with the loss, away from work, without needing to take sick leave.
This new legislation covers all pregnancies except those ending as the result of an abortion, and uses the terms ‘miscarriage’ and ‘still-birth’. A miscarriage is defined as a pregnancy that ends in the first 20 weeks, while a still-birth is one that ends any time after 20 weeks.
The Bill provides three days bereavement leave for the woman who was pregnant and her partner.
A person who was undertaking the role of a parent through adoption or surrogacy may also be entitled to bereavement leave under this legislation.
The Holidays Act sets out rules and about when people are entitled to paid Bereavement Leave (however, typically, Bereavement Leave is on pay).
The Holidays Act sets out rules about when an employer is entitled to require proof of illness (i.e. from employees taking sick leave); but does not say when an employer is entitled to require proof of a bereavement event. Hospitality NZ’s position is that it will sometimes be fair and reasonable for an employer to require evidence of a bereavement event, but that sensitivity and discretion is obviously needed (i.e. usually employers should operate on trust). Employers should also be mindful that the entitlement to bereavement leave doesn’t mean that the employee is too emotionally sick to work. Further, if the bereavement event is an early-stage miscarriage, it might be unrealistic to expect the employee to provide proof.