Currently, parents of newborn babies requiring neonatal care have only the standard types of statutory family-related leave to rely on, including maternity, paternity and so on. However, that’s set to change when the Neonatal Care (Leave and Pay) Act 2023 comes into force, which is likely to be in April this year.
In the absence of specific leave provisions for babies receiving neonatal care, the parents of these babies must rely on statutory (such as maternity or paternity) or contractual leave provisions, or the discretionary goodwill of their employer, to spend time with their baby. This means a significant portion of this leave, designed for them to build bonds with their baby and adjust to their new family, is spent in a hospital or other medical facility.
The new law will allow employed parents to be absent from work for a prescribed period in respect of a child who is receiving, or has received, neonatal care. All employees who meet the eligibility conditions will be entitled to this leave and pay, from the first day of employment.
This leave is designed to be taken at the end of other forms of statutory leave, such as maternity, which starts automatically on the birth of the baby, or paternity, as these leave types cannot be stopped and restarted. Practically, this means this leave may be taken after the baby has been released from medical care.
Neonatal leave is to be taken in blocks of a week, for every week that the baby is in hospital, for a maximum of 12 weeks. We won’t know for certain until the regulations are published when it must be taken by, but the Act puts a limit of 68 weeks from birth on this.
Neonatal care includes care of a medical or palliative kind to be specified in regulations, where that care starts within the first 28 days of the baby’s life, and continues uninterrupted for at least seven days.
Provisions will also be made for neonatal care pay to be paid during leave at a prescribed rate for those eligible parents who meet minimum requirements (likely the same as other family-related statutory pay such as maternity). The Act allows provision to be made for employers to reclaim payments from the government, as is the case for other forms of statutory pay such as maternity pay.
Employees who take neonatal care leave will have the same employment protections as those associated with other forms of family-related leave (ie maternity or paternity, etc). This includes protection from dismissal or detriment as a result of having taken the leave.
We are awaiting the publication of the final regulations that will allow us to plan for the implementation of the neonatal care leave policy. These will provide the final points of clarification we need on the group of people who will be eligible for leave, as this is likely to be wider than the biological parents, and on the notice and notification requirements for taking the leave and pay.
Case for statutory paid miscarriage leave ‘overwhelming’, say MPs
The CIPD has joined calls for changes to the employment rights bill to offer time off to employees who experience pregnancy loss before 24 weeks. Paid bereavement leave should be granted to all women who experience miscarriage and their partners, a report by the Women and Equalities Committee (WEC) has recommended.
Since April 2020, employees have been entitled to two weeks of statutory parental bereavement leave and pay if they or their partner lose a child under 18 years old or experience a stillbirth after 24 weeks of pregnancy.
In the report, the WEC stated that it intends to table amendments to the employment rights bill to extend these rights to employees who experience pregnancy loss before 24 weeks.
The proposed provisions would cover those who experience miscarriage, ectopic pregnancy, molar pregnancy, IVF embryo transfer loss or termination for medical reasons.
Legislative challenges and employer responsibilities
As pregnancy is a protected characteristic under the Equality Act 2010, any sick leave taken within the first two weeks after a miscarriage should not count towards absence triggers as this is classed as the “protected period”. Any further sick leave could also be considered as pregnancy-related illness, so taking disciplinary action against an employee for this is likely to be considered discriminatory by an employment tribunal.
However, remember that these protections currently only apply to mothers and do not extend to their partner. Expectant fathers also experience emotional loss and should not be forgotten in any support offered. Employers should support employees experiencing pregnancy loss by signposting any counselling services they offer, such as an employee assistance programme or to baby loss charities such as Sands.
As always if you have any questions regarding the above or if you’d like to discuss these or any other points further please give one of our expert team a call or get in touch via our Contact Form.