The Employment (Amendment) Bill, 2019 was signed into law on 30th March 2021. The new Act – Employment (Amendment) Act, 2021 came into force on 15th April 2021. The Act goes a long way in supporting the adoption of children in Kenya.

The Act amends the Employment Act, 2007 (the Principal Act) by adding the following provisions:

Exit Certificate

An exit certificate is 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 main purpose of the exit certificate is to serve as a documentary evidence showing the intention of an adoption society to place a child under the care of a prospective adoptive parent’s custody.

Pre-adoptive Leave

Per the new law, an employee will now be eligible to a 1-month pre-adoptive leave with full pay where a child is placed in their continuous care and control.  The period of 1 month runs from the date of placement of the child.

An employee who is eligible for the pre-adoptive leave will however be obligated to meet the following requirements before requesting for leave from an employer:

• Notify the employer in writing of the adoption’s society intention to place a child in their custody at least 14 days before the placement of the child.
• The notice should be accompanied by documentation evidencing the adoption’s society intention to place the child in custody of the employee, including a custody agreement between the employee and the adoption society and an exit certificate.

Resumption of work

Upon the expiry of the 1-month pre-adoptive leave, the employee is entitled to resume working the job held prior to the leave or to a suitable job on terms and conditions not less favorable had the employee not been on pre-adoptive leave. An employee will not forfeit annual leave on account of having taken pre-adoptive leave.

Importantly, where the pre-adoptive leave is extended with the consent of the employer, or after the expiry of the leave the 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 the extended leave.

What necessitated the Changes

The Employment Act as originally passed  only contemplated leave for biological children. It did not contemplate leave for parents that adopted children. To that extent, the law was discriminative to parents who start families through other means such as adoption. It was thus fundamental to expand meaning in order to incorporate these families. Section 157 of the Children Act No.8 of 2001 provides that for a child to be adopted, they must be under continuous care of the applicant for a period of at least three consecutive months.

Effect of the Changes

The new provision means that employers have an obligation to allow their employees who are adopting children to proceed for their one month leave. It is thus important for employers to incorporate pre-adoption leave in their Human Resource policies.

Pre-adoptive leave applies to both male and female employees who have exit certificates relating to child placement.