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PRE-ADOPTIVE LEAVE: IMPACT OF THE EMPLOYMENT (AMENDMENT) ACT NO. 2 OF 2021

Introduction

The Employment (amendment) Act was assented to on 30th March 2021. The purpose of this Act was to amend section 29 of the Employment Act 2007 which provides for maternity and paternity leave, to include a provision for leave where a person adopts a child. This was through the advent of section 29A.

Pre-adoptive leave

Section 29A of the Amendment Act provides for adoptive leave. In this, where a child is to be placed in the continuous care and control of an employee, the employee shall be entitled to one month’s pre-adoptive leave with full pay from the date of the placement of the child.

It further makes 2 provisions:

  • Fourteen days before the child’s placement, the applicant should give a notice to their employer expressing the adoptive agency’s intention to place the adopted child in the care of the applicant.
  • The applicant must accompany the notice with documentation evidencing the said placement. This includes a custody agreement between the employee-applicant and the adoption society as well as an exit certificate (“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.”)

Provisions for pre-adoptive leave in other jurisdictions

In the United Kingdom, Statutory Adoption Leave is 52 weeks and only one person in a couple is granted adoption leave. The other partner is instead granted paternity leave. In Peru also, only one parent in the couple is awarded pre-adoptive leave.

In other states, the leave for expectant mothers is longer than for adoptive mothers. For example, in Ireland where the pre-adoptive leave is 40 weeks compared to 42 weeks f or mothers giving birth. Reason being the latter is given leave two weeks before the due date for purposes of health and safety.

Import of the Employment (Amendment) Act

This Act is a very progressive move which ensures that adoptive parents share the same legal umbrella with all other parents. Unlike in Peru and the U.K seen above, both Parents in Kenya will be eligible for adoptive leave. It should be noted however, that there should be a consideration on extension of the one month leave period with regard to the age of the child.  

The expectation now is that employers will need to make a provision for pre-adoptive leave in employment contracts and their human resource policies as well.

For more details and professional advice on the information in this legal update, please do not hesitate to contact

Benson Ngugi (benson.ngugi@attorneysafrica.com),

Ken Rutere (ken.rutere@attorneysafrica.com)

Martin Moturi (martin.moturi@attorneysafrica.com)