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Leave days as gazetted by the government
Taking a rest is important for your physical and mental well-being. In addition to having some time off work just to relax, there are other circumstances which might force you to take some time off. As a result, the government of Kenya has gazetted some important laws which guide employers and employees on how to take some time off work, under different circumstances. It should be noted that these are the legal privileges protected by the law.
Here are the types of leave every employee is entitled to, under the Employment Act of Kenya;
Annual leave
This is perhaps the most common and widely known type of leave. According to section 28 of the Kenyan Employment Act, clause Clause 7.8.9, every employee is entitled to 21 annual leave days after one year of service to the company, with full pay. This is calculated as 1.75 working days per month. It does not mean that an employee is not entitled to leave days if they have not completed one year of service. Rather, it means that the employee accrues their leave as per the number of months worked in the company. Therefore, if, for example, you have worked for a company for two months, you are entitled to 3 days of leave thus far. These leave days can be taken in lump or in bits spread across the year, as agreed between the employee and the employer.
Moreover, the law provides that any leave days not redeemed within the year can be carried forward, with the consent of the company and must be redeemed before 31st March, after which they are forfeited. The law further states that the leave days carried forward to the next year should not be more than 10 days.
Therefore, employees must take at least 11 days within the year that they are earned and the remaining 10 days must be taken before 31st March of the following year.
In the event that you fail to take your leave days due to workload, your employer should pay you the equivalent of your leave days at the lapse of the 18 months period up to 31st March.
Maternity leave
Every woman of reproductive age is entitled to a 3-month maternity leave period, with full pay. This should not be counted as part of your annual leave as it is a separate entity. Failure to give an employee maternity leave or dismissal on grounds of pregnancy amounts to discrimination and an employee has the right to sue the employer on grounds of discrimination. With that said, an employee is required to notify the employer, in writing, of her intention to proceed on maternity leave, prior to the commencement date. The law is, however, not clear on just when maternity leave should commence.
In addition to this, an employer should also not deny a potential employee a job on grounds of pregnancy. As such, an employer cannot ask an employee whether she is pregnant, prior to employment as this infringes on the employee’s right to privacy. The employee has no legal obligation to disclose their pregnancy status or take a pregnancy test prior to or during employment. An employer can only seek information on whether an employee is pregnant if the job poses a risk to a pregnant woman or to the unborn child.
Paternity leave
Under the Kenyan law, a new father is entitled to a two-week paternity leave, with his full pay.
Sick leave
An employee is entitled to sick leave days under the law, in addition to their annual leave days. Under the Employment Act, employees are entitled to 7 days of paid sick leave annually, having worked with their employer for a maximum of 2 months. After the 7 days lapse, the employee is only entitled to 7 other days within the year but on half pay.
If an employee falls sick during their annual leave days, then sick leave does not apply. However, for sick leave to apply, an employee must notify the employer of an incapacity to work through a medical certificate signed by a qualified medical practitioner.
Additionally, under section 34(1) of the Kenyan Employment Act, an employer is required to provide an employee with proper medical care when sick, and this explains why most companies offer medical insurance schemes for their employees. In the event that an employee maximises on their employer’s medical cover, then the employee has the burden of covering any additional medical bills that may arise. This provision, however, only applies where an employee cannot obtain free medical attention provided by the government or an insurance scheme which has been provided for under the law.
As it stands, the law provides an employee with many types of leave days and every employer has an obligation to uphold these laws. Any employment contract that is in contravention of what is provided for under the law is considered null and void and an employee can sue an employer as provided for by the law.
