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LEGAL ALERT: Pre-Adoptive Leave As Introduced in Employment (Amendment) Act, 2021 No. 2 of 2021

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The President assented to an Act of parliament amending section 29 of the Employment Act, 2007 (‘the principal Act’) on 30th March, 2021 and the Act shall be coming into force this week Thursday on the 15th April, 2021. In a move that many are celebrating, the Act introduces Pre-Adoptive Leave.

The Act amends the Principal Act by introducing the ‘Exit Certificate’ inserted in the definitions to mean a written authority given by a registered adoptive society to a prospective adoptive parent to take the child from the custody of the adoptive society.

Pursuant to Section 157 of the Children Act, Act No. 8 of 2001, any child who is resident within Kenya maybe adopted in accordance with the Conditions set out in the Act. The application for an adoption order can only be made where the child has been in continuous care and control of the applicant within Kenya for a period of three consecutive months before filing the application.

Pre-adoptive Leave Eligibility

Where pursuant to section 157 of the Children Act, the child is to be placed in continuous care and control of the applicant who is an employee as defined under the principal Act. The employee is entitled to one month’s pre-adoptive leave with full pay from the date of placement of the child.

Notice to the Employer

The employee is required to give the employer fourteen (14) days written notice of the intention of the adoptive society to place the child in his or her custody before the child is placed in their care. Such notice to the employer is to be accompanied by documentation evidencing such process including the custody agreement between the adoptive society and the employee and as well as an exit certificate.

Resumption of Work After Pre-Adoptive Leave

Just like with maternity leave, as provided under section 29(3) of the principal Act , on expiration of an employee’s maternity leave the employee has the right to return to the job she was holding prior to her maternity leave or to a suitable job on terms and conditions not less favourable, the same is applicable to an employee who has taken a pre-adoptive leave.

Forfeiture of Annual Leave

Just like maternity leave and as provided under section 29(7) of the principal Act, no female employee shall forfeit her annual leave entitlement under section 28 of the principal Act on account of having taken pre-adoptive leave.

The effect of the Amendment is that employers will have to allow their employees adopting children to proceed on leave and it is prudent for employers to provide for pre-adoption leave in their Human Resource Policies.

For any questions or assistance needed regarding this alert, contact the Dispute Resolution Team through Deputy Managing Partner and Co-Head of Dispute Resolution Marysheila Onyango Oduor and Associate Leyla Ahmed.

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