Discussing the fundamental principles inherent to effective systems of caregiving leave

• Author: Elsabé Huysamen
• DOI: 10.17159/2225-7160/2020/v53a16
• Published date: 01 June 2020
• Date: 01 June 2020
• Pages: 229-247

Fundamental principles inherent to effective systems of caregiving leave 229

Discussing the fundamental principles

inherent to effective systems of caregiving

leave

Elsabé Huysamen

LLB LLM

Lecturer, Department of Mercantile & Labour Law, University of the Western Cape

SUMMARY

Achieving a healthy work-family life balance is becoming increasingly

difficult and is generally dependent on a combination of factors. Such

factors include the nature and intensity of work engaged in, available

legislative or employer provided leave and time-off for caregiving (family)

responsibilities, and organisational and home support towards carrying out

caregiving duties. A largely female focussed approach towards available

caregiving leave must also be addressed. A truly effective system of

caregiving leave should be sensitive towards a number of issues, most

notably: job security and availability, and sufficiency and practicality of

available caregiving leave. With the aforesaid as background, the aim of

this contribution is to highlight those fundamental or core principles

arguably inherent to any effective system of caregiving leave.

1Introduction

“We need to give working families a break … We know that the cost of the

American dream must never come at the expense of the American family.

You’re working longer hours. More families have two parents working.

Meanwhile, it’s hard to get a hand. It’s even harder to get a break. I’ll be a

president who stands up for working parents… We’ll enforce laws that

prohibit caregiver discrimination. And we’ll encourage flexible work

schedules to better balance work and parenting for mothers and fathers.

That’s the change that working families need.” [Barack Obama – Former

President of the Unites States of America].1

Achieving a proper work-family life balance2 appears to be more difficult

than ever. A 2016 study conducted in the United States of America (USA)

indicated that two-parent families earning the median income, on

average, worked 700 more hours annually compared to hours worked by

1 Barack Obama http://www.barackobama.com/2007/11/07/remarks_of_

senator_barack_obam_31.php (accessed 2014-03-28); see also Garvey and

Mitchell “Who’s your daddy? A proposal for paid family leave to promote

the growth of families” 2009 Hofstra Lab. & Emp. L. J. 221.

2 The term work-life balance is often used, though this article finds the term

work-family life balance to be better suited to the discussion at hand. For a

general discussion on the concept work-life balance see Cohen and Gosai

“Making a Case for Work-life Balance for the South African Employee” 2016

ILJ 2237-2250.

How to cite: Huysamen ‘Discussing the fundamental principles inherent to effective systems of caregiving

leave’ 2020 De Jure Law Journal 229-247

http://dx.doi.org/10.17159/2225-7160/2020/v53a16

230 2020 De Jure Law Journal

two-parent families during the 1970s.3 Increased working hours are

often associated with decreasing physical and mental health of workers,

lower job satisfaction and productivity, and an increase in staff

turnover.4 Achieving a healthy work-family life balance is generally

dependent on a combination of factors, most notably, the nature and

intensity of work engaged in, available legislative or employer provided

leave and time-off for caregiving (family) responsibilities, and

organisational and home support towards carrying out caregiving

duties.5 Consequently, a healthy work-family life balance is not only

premised on (reducing) the number of hours individuals work, but also

the availability of adequate leave entitlements to carry out caregiving

responsibilities (hereafter referred to as caregiving leave).6

Whilst caregiving leave policies have traditionally focussed on

maternity leave and associated benefits for women, the focus has in

recent years broadened to include caregiving leave for both men and

women.7 This shift in focus is to a large extent contributed to a change

in society’s view on traditional caregiving responsibilities of men and

women, together with increased female participation in formal

employment.8 Progressive caregiving leave policies support egalitarian

relationships, which is representative of shared domestic responsibilities,

within which a more active role by men is encouraged.9 Similar to

arguments advanced in the context of maternity leave,10 this article

proceeds on the basis that any effective system of caregiving leave

should cater for at least the following elements: job security during, and

upon the return from, any period of caregiving leave; access to (that is,

the availability of) periods of caregiving leave; and available benefits (of a

sufficient nature) during periods of caregiving leave.11 The discussion in

this article mainly concerns the latter two elements and their constituting

principles.

With the above as background, the aim of this contribution is to

highlight those fundamental or core principles (five in total) arguably

inherent to any effective system of caregiving leave. The discussion will

commence with a brief overview of changing societal perceptions around

the traditional caregiving responsibilities of men and women

3 Albiston and Trimble O’Connor “Just Leave” 201 6 Harvard Journal of Law &

Gender 15.

4 Albiston and Trimble O’Connor 2016 Harvard Journal of Law & Gender 17.

5 Cohen and Gosai 2016 ILJ 2237.

6 Caregiving leave is used as a wide term, inclusive of all leave systems

typically associated with family responsibility duties, most notably,

maternity-, paternity-, adoption-, parental-, family responsibility- and

commissioning parental leave; see also Cohen and Gosai 2016 ILJ 2238.

7 Cohen and Gosai 2016 ILJ 2239.

8 See discussion under para 2 below.

9 Rycroft and Duffy “Parental rights: Progress but some puzzles” 2019 ILJ 25.

10 Refer to discussion of maternity rights in Rycroft and Duffy 2019 ILJ 15-17.

11 Rycroft and Duffy 2019 ILJ 15-17; see also Field, Bagraim and Rycroft

“Parental leave rights: have fathers been forgotten and does it matter?”

2012 SA J of Labour Relations 3041.