In March 2021, the President of Kenya assented to the Employment Amendment bill which has since become an Amendment Act: The Employment Amendment Act (2021) which responds to previously unaddressed issues in the employment sphere.
The Amendment introduces a Section 29A which is to supplement the provision of Section 29 on maternity leave. Section 29A makes an accommodation for employees who seek to adopt a child by including a section on pre-adoptive leave. The section states that parents who have applied to adopt children are entitled to a 1-month pre-adoptive leave with full pay. This responds to the previous situation whereby the law had a lacuna as regards the protective measures that accommodate adoptive parents.
Section 29A as aforementioned is to be read with Section 29. It is also pursuant to Section 157 of the Children’s Act which provides that a child is to be placed under the continuous care and control of an applicant who is an employee as per the Employment Act. Section 29A states that an employee is entitled to 3 consecutive months of pre-adoption leave with full payment of the placement of the child. The provision makes differential provisions for male and female married employees. It states that for married female employees, the fully paid pre-adoption leave shall last for 3 consecutive months after the child is placed under adoption; and for a married male employee, the same shall last 2 weeks. Interestingly, the Act is particular on the factor of marriage which is increasingly excluded from the equation of many modern-day relationships; a factor which may be argued to be discriminatory against unmarried parents.
Eligible employees are required to issue a written notice of at least 14 days before the child is placed under adoption to their employees informing them of their adoption. The written communication should include the intention of the adoptive society to place the child in the custody of the employee; the documentation evidencing the same including a custody agreement between the employee and the adoption society and an exit certificate from the institution.
This new provision is set to allow adoptive parents the opportunity to usher their new young one’s home in a manner similar to biological children. Needless to say, this new development may result in giving adoptive children a better sense of stability and social acceptance.