Important Employment Act Updates on Pre-Adoptive Leave 2021

On 30th March 2021, President Uhuru Kenyatta signed into law by way of ascent, the Employment (Amendment) Act, 2021. The exact amendment has been a subject of discussion among Kenyans. This has been witnessed by the circulation of contradictory information concerning the amendments. This article clarifies the true position of the new amendment and therefore a vital piece to both employers and employees.

What was amended?

The Employment (Amendment) Act, 2021 which was introduced by Hon. Martha Wangari on 15th March 2019 amends the Employment Act, 2007. Only two sections of the Employment Act, 2007 have been amended.

These are, Section 2 and an introduction of Section 29A.

Section 2

The amendment introduces the definition of the term “exit certificate”

“exit certificate” means 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;

For an employee to be entitled to pre-adoptive leave, they are under a duty to provide the exit certificate to their employer.

Section 29A introduces Pre-adoptive leave.

1. How it will affect your right to pre-adoptive leave

It is now a legal and codified right of every employee who intends to adopt a child to be entitled to a one Month pre-adoptive leave.

Initially, Hon Martha Wangari had proposed for three months but this was reduced to one month.

2. Obligations of the Employee

The pre-adoptive leave is not automatic and the employee is required to provide notice in writing informing the employer of the intention of the adoption society to place the child in the custody of the employee at least 14 days before the placement. The employment act captures this setting precedents for both employees and employers.

3. Documents to accompany the notice

The employment act requires an employee applying for pre-adoptive leave to attach documentation. This document should provide evidence of 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.

The use of the word including means the list is not exhaustive and other documents may be accepted but the custody agreement and exit certificate MUST always be provided.

4. Pre-adoptive leave with regard to maternity leave

Some of the rights that accrue to a female employee proceeding on maternity leave will also accrue to a female employee proceeding on pre-adoptive leave.

For instance, under the employee act, the employee shall have the right to return to the job which she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favorable than those which would have applied had she not been on pre-adoptive leave.

5. Circumstances where pre-adoptive leave can be extended

Firstly, with the consent of the employer and secondly were immediately on expiry of pre-adoptive leave before resuming her duties a female employee proceeds on sick leave or with the consent of the employer on annual leave; compassionate leave; or any other leave, the one-month pre-adoptive leave shall be deemed to expire on the last day of such extended leave.

6. No forfeiture of annual leave

To avoid a situation where an employer converts the pre-adoptive leave as part of the annual leave entitled to every employee, the new employee Act has provided that an employee who takes pre-adoptive leave is still entitled to annual leave in totality.

The new employment act will see a lot of changes in how we look at human resource management from a wider angle.  

Important to note

The new employee Act uses the word “employee”. It has not conceptualized pre-adoptive leave to only be enjoyed by one gender only. This, therefore, means that both male and female employees are entitled to leave.

The employment act is clear that within the pre-adoptive leave, the employee is entitled to full pay. Employers are therefore required to remit salaries of employees on such leave in full. Any deduction on the basis of pre-adoptive leave is unlawful and will attract legal sanctions.

Employers are free to provide for a longer period of more than one month, but should not at any point reduce the leave period to less than one month.

The world is progressive and this is reflected in changes being effected to the operations of our workplaces. This is a welcome amendment and a win to employees. Human resource practitioners are therefore called upon to note this new employment act amendment, inform employees of this right, and put in place mechanisms of receiving feedback.

To learn more on new statutory provisions, read now! On How the Unified Payroll Return affects you and Everything you need to know about the new Digital service tax 2021.