Employers will now be required to grant one (1) month paid leave to mothers who adopt children as well as a 2-week paternity leave to adopting fathers. This follows Presidential assent to the Employment (Amendment) Bill, 2019[1] on 30th March 2021 which effectively made amendments to the Employment Act No. 11 of 2007.[2] The one-month paid leave is a reduction of the earlier proposal for a 3 months’ paid leave contained in an earlier version of the Bill and which period is similar to that granted to mothers who bear children naturally.
The relevant provision grants adopting mothers one-month pre-adoption leave with full pay from the date of adoption of the child or placement of a child in the continuous care and control of an employee. On the other hand, a married male employee is entitled to 2 weeks pre-adoption leave with full pay from the date of placement of the child in their control.
An employee who is eligible for pre-adoption leave is required to notify their employer in writing of the intention of an adopting society to place a child in their custody and care at least 14 days before such placement. This notice in writing should be accompanied by evidence of such intended adoption or placement including a custody agreement between the employee and the adoption society as well as an exit certificate. An exit certificate refers to the written authority given by a registered adoption society to a prospective adoptive parent to take a child from the custody of the adoptive society.
[1] <http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2019/Employment_Amendment_Bill_2019.pdf > accessed 31 March 2021.
[2] <http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%2011%20of%202007 > accessed 31 March 2021.
This amendment to the law is meant to entrench equality between parents who naturally give birth to children and those who adopt children from adoption societies. The legal requirement wrought by this amendment will certainly have implications on employers as they will have to do without employees who choose to adopt children for the duration of the leave, with consequences on productivity and adding on to labor costs as employers will have to hire additional workers on a temporary basis for the period. Potentially, it is possible for the legal provision to be abused by employees in order to obtain leave.
Notably, the President had initially rejected an amendment to the Employment Act (contained in the Bill now assented) which sought to grant pre-adoptive leave to surrogate parents who give birth through assisted reproductive technologies, on grounds that Kenya does not yet have a legal framework on surrogacy.[1] There is currently an Assisted Reproductive Technology Bill 2019[2] pending in Parliament, which seeks to provide the requisite legal framework for surrogacy and assisted reproductive technology. Once this law is enacted, it may not be surprising to find a similar amendment to employment law to require granting of leave to surrogate parents.
[1] <https://www.businessdailyafrica.com/bd/economy/uhuru-rejects-maternity-leave-f-adopting-children-3285586 > accessed 31 March 2021.
[2] <http://www.parliament.go.ke/sites/default/files/2019-06/Assisted%20Reproductive%20Technology%20Bill%2C%202019.pdf > accessed 31 March 2021.
