Maternity Leave has been one of the most sensitive subject matters in employment in Kenya.
According to Part V, Section 29 of the Employment Act 2007, a female employee is entitled to three months maternity leave with full pay and has a right to return to the job she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favorable than those which would have applied had she not been on maternity leave.
The question however is, what happens when an employee looses her child prior to proceeding on maternity leave, does the employee still qualify for it? I mean, if the child dies say, a week to the expected date of delivery or just before the employee applies to proceed on their maternity leave.
Lawfully, they don’t. They loose the right to the maternity leave because the baby, who is the reason for the leave is no longer there. The law is very silent on this area though and so the company, at it’s own discretion is allowed to make a decision on what happens next putting into consideration the circumstances at hand. The company policy on this subject, if any, applies in this case. It is however a very delicate balance.
Loosing a child is a very difficult moment for anyone and any employer who expects their employee to continue working as if nothing happened can be considered, very wicked. I therefore believe that the company needs to give reasonable time to this employee so they can grieve for their loss before they can resume duties. There is also another side to it. There are those people who would prefer not to take time off and instead bury themselves in work in order to avoid dealing with the issue. This may be okay temporarily but it will definitely affect the employee in the long run. Again, there is no black and white formula for dealing with the death of a child. In such cases, counseling may be ideal, but again, the employee must be willing to take that up.
In my own opinion, sitting down with the employee to establish what they would want is the first step. Secondly, whether the employee wants the time off or not, I think it should be offered to them. All in all, this is one of those areas in human resource practice that a manager is expected to very compassionate and allow the staff have their way.