On 30 March 2021, the President H.E. Uhuru Kenyatta signed into law the Employment (Amendment) Act, 2021 (the Act). The Act was one of 3 Employment (Amendment) Bills introduced in 20191, and it is the only one that has currently been passed into law. The Act came into force on 15 April 2021, following its gazettement through Kenya Gazette Supplement No. 53 (Acts No. 2).
The Act amends the Employment Act, 2007 (the Employment Act) to provide for pre-adoption leave. Section 29A has been introduced to the Employment Act which provides that where a child is to be placed in the continuous care and control of an applicant who is an employee under the Employment Act, the employee shall be entitled to 1 month's pre-adoptive leave with full pay. This varies from the proposals made under the Employment (Amendment) Bill, 2019 (the Bill), which proposed that a female married employee be entitled to pre-adoption leave for a period of 3 months from the date of the placement of the child and that a male married employee be entitled to pre-adoption leave for a period of 2 weeks. The Act has now moved away from qualifying the pre-adoption leave based on sex and marital status, and also changed the pre-adoption leave period from 3 months for female married employees and 2 weeks for male married employees, to 1 month for both male and female employees regardless of one's marital status. This is a welcome change for prospective parents who wish to adopt children. However, a period of 1 month may be too short a period for parents who wish to adopt newborns or children below 3 months, given the care that would be needed for the child.
For an employee to be eligible for pre-adoption leave, they are required to notify the employer in writing of the intention of the adoption society to place the child in their custody at least 14 days before the placement of the child (the Notice). The Notice should be accompanied by documentation evidencing the intention of the adoption society to place the child in the custody of the employee, including a custody agreement between the employee and the adoption society and an exit certificate being a written authority given by a registered adoption society to a prospective adoptive parent to take the child from the custody of the adoptive society. The Act also provides that certain entitlements afforded to employees for maternity leave will apply to an employee eligible for pre-adoption leave, with the necessary modifications. These entitlements include retaining the job held before the employee proceeded on pre-adoption leave, the construction of the leave to accommodate any extension granted by the employer or factoring in other categories of leave also taken, and non-forfeiture of annual leave on account of having taken pre-adoption leave.
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