Maternity Leave in Kenya: 90 Working Days or 90 Calender Days?

Maternity Leave in Kenya: 90 Working Days or 90 Calender Days?

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Many expectant employed women look forward to the birth of their little ones, evident by their excited shopping trips to Biashara street, Toi market, online shopping, washing and folding the cute little fresh-smelling clothes, the excitement around decorating the nursery, how they go on and on about their pregnancy journey whilst touching their bellies, the baby shower, comments on Facebook groups… it’s all such a beautiful and delightful experience for many women.
Sometimes though, pregnant mums get so preoccupied by this excitement that they forget to put in place measures for a smooth transition at their workplace when they proceed on maternity leave. Putting in mind that most babies do not come on the exact due date, with quite a significant number making their debut days or even weeks in advance, it is therefore important for all working pregnant women to  ensure that they are well covered at their workplace during maternity leave. They need to prepare adequately for the same, especially if baby comes earlier than expected.

Now, via my blog and all the mummy Facebook groups I’m in, I’ve noticed that many pregnant women are always unsure about the exact provision for maternity leave. Many ask: Is maternity leave supposed to be 90 calendar days or 90 working days? Many women are even known to have engaged in bitter stand-offs with their HR’s over the matter!

So I decided to ask Lucy Gacheru, a HR professional to break it down for us so that we can well understand what the provisions are for maternity leave in Kenya, as well as offer us a few tips on how to prepare for this time.

Mummy Tales: Exactly how many days is maternity leave and how is it calculated?

LG: According to the current Kenya Employment Act, a female employee is entitled to three months maternity leave with full pay. This is 90 calendar days (including weekends and public holidays) and not 90 working days. In other words, maternity leave is three calendar months.

It is also important to note that no female employee should forfeit her annual leave entitlement on account of having taken her maternity leave. Her annual leave days remains untouched.

Lucy Gacheru, HR professional.
Lucy Gacheru, HR professional.

MT: Is there anything in particular she needs to do before proceeding on maternity leave?

LG: She is required to give not less than seven days notice in advance, or a shorter period as may be reasonable in the circumstances of her intention to proceed on maternity leave on a specific date and to return to work thereafter. This notice should be in writing.

It is also important to note that while maternity leave is indeed her right, she should however prepare her employer well -depending on how her pregnancy is progressing. This will not only facilitate better planning, but will also demonstrate her engagement and commitment to the organization.

MT: Is her job secure while she is on maternity leave?

LG: On expiry of her maternity leave, she has the right to return to the job which she held immediately prior to her maternity leave, or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had she not been on maternity leave.

MT: What about hand-over issues?

LG: The issue of hand over is very important for any employee, and it is therefore of great essence that she plans hers well in advance so that if baby comes earlier than expected, or if there is some sort of medical emergency, then she is well covered and facilitates the smooth running of duties in her absence, thus causing less inconveniences to her colleagues.

One other important thing that I would like to advise pregnant career mums: You must know your employee rights! Don’t be coaxed into returning to work three weeks after birth just because there is a ‘crisis’ in the office. You have every right to be at home with your baby, and no one should force you to return to work before completing your 90 calendar days. Not unless of course you have negotiated and YOU are willing to assist… assist being the key word here. It should be under your own volition to go to the office, and not do so under threats or intimidation. Remember, the law is on your side.”

Hope this information from Lucy Gacheru helps. See more questions and answers at the comments section below. Share this information with all the career pregnant mums you know.

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41 COMMENTS

  1. When you include public holidays, does it mean that for example, if one of my maternity months is December, all the three holidays that fall in the same month are not carried forward?

    • Hi Jane, the new mum is not entitled to extra maternity benefits if she’s expecting twins or multiple babies. Her entitlements to leave and pay are the same as if she were expecting one baby. Maybe she can negotiate with her employer if she feels she needs more time. I know of a couple of mums who have done that and thankfully their organizations gave them a few more weeks. But the decision really lies with the organization, not the law.

  2. I want to ask, how long should a staff work for same employer to qualify for paid maternity leave? For example I have a staff who has only worked for 3 months and now pregnant, what should it be done?

    • Hi Alf. Your staff qualifies for maternity leave as long as they are your staff and have fallen pregnant even within the first week of work. They still qualify for maternity leave just like every other employee -Lucy Gacheru.
      Thanks.

  3. Is there a waiting period for new staff to qualify for full paid maternity leave? For example if an employee joins an organization when they are 3 months before proceeding on leave will they be on full pay?

    • Hi Bernadette, here is Lucy Gacheru’s reply to your question:
      “Yes, they are entitled for full pay maternity leave. I believe within the 3 months you will be able to determine her capabilities on the job. The only leave that attracts half pay and the rest is sick leave.”

    • Hi Evans. Unfortunately, the law only indicates that it grants maternity leave but it does not mention if the child survives or not. The assumption of the law is that the child lives. That means you have to refer to the employer’s policy, where the organization makes the decision on whether to offer the new mum compassionate leave or allow her to take her leave days. It largely depends on how she can negotiate with her employer, and this varies from organization to organization. It is upon the discretion of the organization to offer her additional days at home. For some women they produce medical reasons why they need to continue being at home and away from work, in which case it becomes sick leave. It is indeed quite an unfortunate situation for a mum who loses her child soon after birth, and is therefore expected to return to work.

      • An employee who loses her baby after birth is entitled to 3 months maternity leave. This rule was passed because a pregnant woman undergoes many bodily changes during pregnancy and three months is the recovery period (hence the changes in the Employment Act 2007 from 2 months to 3.). However, if the bereaved mother does not wish to take the three months, they cant be forced

  4. Thanks for the info… my question is what about someone who is employed as a consultant on a 12 months contract and delivers during the course of their consultancy?

    • Hi Em. The employment Act on maternity leave does not categorize whether it applies to only permanent or contracted staff. This also means that Interns can go for maternity.
      To answer your question, yes you are entitled for maternity leave; ninety (90) calendar days.
      What you can do is have an agreement with the employers that you can come back later to complete the job. Hope that helps.

  5. Halo, If I proceed on Maternity and within the period terms of my contract are changed to reduce my pay by a considerable amount…. is that allowed by law. And if not what action may be taken?

    • Hi GNK, as explained by Lucy, you have the right to return to the job which you held before you went on maternity leave (and while you were at it), or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had you not been on maternity leave. Key words being ‘not less favourable’.

    • Hi Stacy, pole that must be quite an unfortunate ordeal. Maternity leave of 90 calendar days is your right as per the law. I would advise you to seek legal redress if this has not been honored.

  6. I am proceeding for maternity leave now and i have a contract that will expire in two months, what happens, is employer entitled to pay my pay on the 3rd month while am on maternity leave

    • Dear Wanjiru, Unfortunately when the contract expires, there is nothing you can do unless the employer extends it – which they are not obliged to do so.

  7. Hello Mary Anne. Can one commence annual leave immediately after maternity leave to combine the two so as to prolong the exclusive breastfeeding period before reporting back to work?

    • Hi Ann,
      Thanks for your query. The law prescribes maternity leave for ninety (90) days only and annual leave of twenty one(21) days. Unfortunately, it does not mention when one should go for annual leave. Therefore, one can go any time… before or after maternity leave.
      Also take note that the approval for going for annual leave immediately after maternity leave has to be agreed between the employer and employee. If the employer declines to approve the leave, then the employee cannot sue the organization and he/she can face disciplinary action if they do not adhere with policy. Hope that helps. Best wishes.

  8. have read through the questions and reply, now tell me is there law for flexible hours for a lactating mom? if Yes please quote

    • Hi Nyandia. In March 2016, Kenyan MPs approved a bill to have employers provide breastfeeding stations for nursing moms in the workplace.
      “All employers shall in the workplace establish lactation stations, which shall be adequately provided with necessary equipment and facilities….,” reads the new clause in the bill, which also compels employers to allow nursing mothers breaks to breastfeed their babies during working hours. “An employer shall grant all nursing employees break intervals in addition to the regular times off for meals to breastfeed or express milk,” adds the clause. The breastfeeding period must not exceed one hour for every eight working hours, the clause specifies.
      You can read more of this here: http://bit.ly/2boaHKk

  9. kindly advise. am working as a guest relation officer and 6 months pregnant. i have been given a compassionate leave for 74 days before my maternity leave
    due to the” nature and sensitivity of the position”. is this right?

    • Hi Maggie, that doesn’t sound right. There has to be clear and elaborate reasons for that leave, otherwise it may be interpreted as discrimination based on pregnancy.
      Also note that unfortunately in Kenya, we don’t have protective legislation of women workers during pregnancy and after childbirth. The only reference it has on workers who have to attend to family issues, is on compassionate leave. However, it says that with prior arrangement with the employer, an employee can be granted compassionate leave without pay. Further the law provides that days taken for such leave can be deducted from annual leave.
      What you need to find out is if you will be getting the compassionate leave with pay or not, and whether it will impact on her annual leave.
      Also, does your company have an internal policy referring to this matter of being awarded compassionate leave due to the ‘sensitivity of the position’?

  10. what about insurance. If I get a new job while am already pregnant can the insurance in my new company still cover my maternity?

  11. Hi I noticed from standard news sometime back the maternity leave was ammended to 90working days.is this true.advice

    • Dear Risper, thanks for your question. The law has not changed. The current Kenya Employment Act stipulates that a female employee is entitled to three months maternity leave with full pay. This is 90 calendar days (including weekends and public holidays) and not 90 working days. Thanks and best wishes.

  12. Kindly advise if one goes for maternity leave for 90 days, and comes back on duty after 68 days, is she qualified to take the remaining 22 days as leave when she runs out of her annual leave. Please advise

  13. I had still birth.i have complications due to the process.my doctor recommended maternity leave for medical reasons but my employer has denied me what should I do?

    • Dear Elizabeth,
      Sorry for the loss of your baby. May God heal you. Regarding your query, it is advisable that you request your Doctor to write a sick leave certificate which your will then present to your HR. It would also be good to know if your company/organization has an internal company policy on sick leave, as this would be a good guide on how to handle the matter.
      Best wishes and hugs.

  14. What should i do if my employer refuses to pay me during my maternity leave or even suck me because am going for maternity leave?

  15. Good afternoon,
    Kindly calculate for me the date of return if my maternity leave starts from 21st July 2017
    when iam surposse to return back.
    I need your help.
    Thanks

    • Hi Ednah, count 90 days from 21st July. You could seek the assistance of your HR manager in this regard. All the best.

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