Legal Alerts

Employment Law Alert: Pre-Adoptive Leave

The Employment (Amendment) Act 2021 was signed into law on 30th March 2021. As a result, section 29A of the Employment Act 2007 was born. Before the introduction of this section, employers had the option of granting or not granting pre-adoptive leave to employees who had adopted a child or were in the process of adopting a child. The number of days granted was also the employer’s discretion. 

Section 29A accords an employee who will have a child placed in their continuous control and care, one month’s pre-adoptive leave with full pay from the date the child is placed in their care and control. This means that an employee is entitled to pre-adoptive leave during the adoption process and not after the adoption has been concluded. But before the employee can take this leave, they must write to their employer in not less than fourteen days; notifying them of the adoption society’s intention to place the child in their custody. The notification should be accompanied by documents proving such intention including the custody agreement and an exit certificate. Section 29A is silent on whether an employee who fails to meet this requirement will be denied permission to go on pre-adoptive leave.

Section 29A (4) provides that section 29 (2) (3) and (7) will apply to an employee eligible to pre-adoptive leave, with the necessary modifications. This means that when the pre-adoptive leave expires, the employee shall have the right to return to the job they held immediately prior to taking the leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had they not been on pre-adoptive leave. Further, where the leave is extended by consent of the employer or where the employee proceeds on any other leave, the pre-adoptive leave shall be deemed to expire on the last day of the extended leave.

Implications of the Section on Employers

Employers cannot terminate the services of an employee who proceeds on pre-adoptive leave and must ensure the employee returns to their job position or a position with terms equivalent to the previous position they held before proceeding on leave.

The one-month period provided in the Act is the minimum, not the standard. As such, employers have the discretion of according employees a pre-adoptive leave period of more than one month.

Since section 29A is an extension of section 29, it can be presumed that pre-adoptive leave is an entitlement reserved only for female employees who are having a child placed in their custody. The Act is silent on a male’s entitlement to this leave which leaves this open to interpretation by the employer on whether or not to grant the same or if to grant them paternity leave once the child has been adopted. Employers may want to consider granting male employees pre-adoptive leave since the placement period is usually vital as it determines whether or not a child will remain in that family depending on the chemistry.

Section 29A does not make provision on how many times in a financial year, an employee can apply for pre-adoptive leave. Unlike pregnancy where it is not humanly possible for one to have more than one delivery in a year, adoption processes depend on a number of factors including whether the compatibility test was passed and whether a child certified free for adoption. Consequently, the need to place a child in an employee’s custody might occur more than once in a financial year. Therefore, the number of times an employer can proceed on pre-adoptive leave has been left to the employer’s interpretation.  

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