THE EMPLOYMENT(AMENDMENT) ACT 2021 :PRE-ADOPTIVE ENTITLEMENT TO EMPLOYEEES

THE EMPLOYMENT(AMENDMENT) ACT 2021 :PRE-ADOPTIVE ENTITLEMENT TO EMPLOYEEES


The Employment (Amendment) Act, 2021 (the “Amendment Act”) which takes effect on 15
th April 2021 amends the Employment Act, 2007 to provide for a new leave (under a new section 29A) to be known
as ‘pre-adoptive leave’.

The intention is to give the concerned employees time to bond with their prospective adopted children during the first days of receiving them in their care from the adoption society or children homes.

Notably, a person who applies to adopt a child must receive the child in their care for a compulsory period of 3 months for bonding with the child and also to enable them to file their adoption application in Court within that period. The pre-adoptive leave is intended to promote the bonding and life-adjustment process between prospective parent and child


Definition of an exit Certificate


The Amendment Act has amended Section 2 of the Employment Act by inserting the definition of an
“exit certificate’.
An exit certificate is defined as a written authority given by a registered adoption society to a prospective parent to take the child from the custody of the adoptive society.
The exit Certificate serves as documentation evidencing the intention of the adoption society to place
the child in the prospective adoptive parent’s custody.


New Provisions on Pre-Adoptive Leave


Section 29 of the Employment Act has been amended by the Amendment Act through the insertion of section 29A on pre-adoptive leave. An employee who obtains the continuous care and control of a child shall be entitled to 1 month’s proadaptive leave with full pay from the date of the placement of the child.

An employee eligible for pre-adoptive leave shall be required under the Amendment Act to do the following:

•To give not less than 14 days written notice of the intention of the adoption society to place the child in the custody of the concerned employee.


• The notice should be supported by documentation evidencing the intention of the adoption society to place the child in the custody of the employee, including a custody agreement between the employee and the adoption society and an exit certificate (issued by the registered adoption society to prospective adoptive parents to take the child from the custody of the adoptive society).


Notably, the amendments do not distinguish between male and female employees, thus should be taken to mean that it applies the same way to both male and female employees. This means that a male or female employee is entitled to 1 month pre-adoptive leave with full pay. For men, this means that the pre-adoptive leave is longer than paternity leave.

Application of Section 29(2), (3) and (7) of the Employment Act to employees eligible for preadoptive
leave.
The amendments also extend the application of the following existing provisions in the Employment
Act to the pre-adoptive leave:


• On expiry of the pre-adoptive leave, the concerned employee (whether male or female) shall have the right to return to the job which he or she held immediately prior to his or her preadoptive leave
or to a reasonably suitable
job on terms and conditions not less favourable than those which would have applied had he or she not been on pre-adoptive leave.

• Where the pre-adoptive leave has been extended with the consent of the employer; or immediately on expiry of the pre-adoptive leave before resuming his or her duties, the employee proceeds on sick leave or with the consent of the employer on annual leave, compassionate leave or any other leave, the 1 month pre-adoptive leave shall be deemed to expire on the last day of such extended leave.
• No employee shall forfeit their annual leave entitlement on account of having taken their preadoptive
leave.

This alert is for information purposes only. For any questions or assistance needed regarding this
alert, contact our Partner Felicia Tunje, head of public policy at felicia@mmsadvocates.co.ke or our
firm at info@mmsadvocates.co.ke , for advice relating to the Amendment Act and how the same might
affect you.

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