President Uhuru Kenyatta signed into law two important pieces of legislation; the Business Laws (Amendment) Bill of 2021 and the Employment (Amendment) Bill of 2019. The former Bill, now Act, amends several statutes in an effort to facilitate the ease of doing business in Kenya while the latter amends the Employment Act 2007 to accord employees with pre-adoptive leave in whose care and control a child is placed. In this alert, we will focus on the latter amendment and highlight the changes it brings forth.
An Exit Certificate
Amendments to the Employment Act (hereinafter “the Act”) begin with the inclusion of an “exit certificate” in the interpretation section. It defines an exit certificate as 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 purpose of this certificate is to evidence the intention of the adoption society to place the child in the adoptive parent’s custody.
There is an amendment to the Act by inserting a new Section (29A)immediately after Section 29. In brief, the new section provides as follows:-
- Where an employee has made an application to adopt a child, and the child is placed under continuous care and control of that employee, such employee shall be entitled to one month’s pre-adoptive leave with full pay from the date of the placement of the child.
- An employee who is eligible for pre-adoptive leave is required to notify the employer in writing of the intention of the adoption society to place the child in their custody at least fourteen (14) days before the placement of the child and to accompany such notice with documents evidencing the intention of the adoption society to place the child in their custody. This documentation shall include the exit certificate and the custody agreement between the employee and the adoption society.
Incorporation of Section 29(2), (3) and (7)
These provisions are applicable to pre-adoptive leave in two respects: First, an employee whose pre-adoptive leave has expired shall be entitled to return to the job they held immediately prior to their pre-adoptive leave or to a reasonably suitable job with terms and conditions as favorable as the job they would have had they not been on pre-adoptive leave.
Secondly, where an employee’s pre-adoptive leave has been extended with the employer’s consent or immediately before its expiry, the employee’s pre-adoptive leave shall expire on the last day of such extended leave. Finally, the employee shall be entitled to their annual leave in addition to taking pre-adoptive leave.
It is notable that both men and women are eligible for pre-adoptive leave. Also, where a couple has adopted a child, they will both be entitled to pre-adoptive leave. Way forward section 15 of the Employment Act requires employers to notify employees of their rights under the Act. In line with this provision, employers should update their human resource policies and ensure that employees are informed of this new development. Further, employers should update the employment contracts of the employees to include entitlement to pre-adoptive leave.
DISCLAIMER: This legal update highlights legislative changes and is intended for general use only and does not constitute legal advice. It is not intended to create an advocate-client relationship. Seek advice from an advocate before relying on any information contained in this legal update