The Paternity Leave Question

Paternity leave is a period of either one or two consecutive weeks (depending on jurisdiction) that fathers or partners can take off from work to care for their baby or child immediately after child birth . The International Labour Conference at its 98th session in 2009 on Gender equality at the heart of decent work called upon governments to develop sound policies for a better balance between work and family responsibilities for both women and men, including paternity and/or parental leave, with incentives to encourage men to take up such leave (ILO, 2014).

When Mark Zuckerberg, founder of social networking site Facebook, took two months off from work after the birth of his daughter, he drew the world’s collective attention to the liberal parental leave policy culture that exists in most of the Silicon Valley companies. His much publicised act also renewed focus on the need for greater recognition of a father’s role in looking after a newborn baby.

Did you know that paternity and parental leave taken by fathers can foster more equal parenting roles? Such measures can initiate a shift in social norms and practices that entrench childcare as solely women’s work and reinforce men’s role as the primary breadwinner. Ultimately, they can enable women to engage and remain in paid employment and progress in their careers (World Bank, 2015; Cerise et al, 2013; ILO, 2014).

Global Figures

In recent years, more and more organisations, world over, have recognised this aspect and revised their parental leave policies to stress on paternity leaves. In Finland, in addition to paternity leave, the government further incentivises fatherhood by offering a ‘daddy's month’. In Sweden, another country with highly family-friendly policies, both parents are collectively entitled to stay at home with their child for a total of 480 days, out of which 60 must be taken by the father.

Practically every country around the world requires employers to grant some type of maternity leave (ILO, 2014). Only Tonga and Suriname do not entitle parents to any kind of leave, paid or unpaid, when a child is born. Papua New Guinea grants unpaid maternity leave and the United States unpaid parental leave. All other countries have laws guaranteeing paid maternity leave, or offering maternity benefits through paid parental leave (World Bank, 2015).Paternity leave entitlements are becoming more common. In 2014, at least 79 countries out of 167 for which data is available require employers to offer paternity leave, mostly in developed countries (ILO, 2014).

In 2014, 66 countries out of 169 required employers to offer parental leaves, mostly in Europe and Central Asian countries (ILO, 2014). Even when parental leave was available to both mothers and fathers, it was taken by women in most cases. Few men used their legal rights to parental leave, especially when those were unpaid (ILO, 2014).

Japan Leads the World on paid paternity leave

In Japan, a man earning an average wage gets 30.4 weeks of fully paid paternity leave, the most of any country in the world, according to a new analysis by the Economist. By comparison, the average across the countries in the OECD—a post-World War II-era economic development group that stands in roughly for “developed markets” around the world—is 4.3 weeks of paid paternity leave. Japan’s supremely generous parental leave policy is completely out of step with the prevailing work culture there: in 2015 only 2.3% of those eligible for paternity leave actually took it, reinforcing the male-dominated work culture. Last year, when 34-year-old Kensuke Mizayaki became the first ever member of Japanese parliament to take advantage of the policy, it made headlines.

South Korea's changing trend impressive

Almost no men used to take South Korea’s generous paternity leave. More Korean dads—a lot more—are now making use of their generous paternity leave.

In the first half of 2018, more than 8,000 men in South Korea went on paternity leave, according to government figures released this week, accounting for 17% of all people who took parental leave. That’s a 66% increase from the same period last year, and an exponential increase from 2010, when just over 800 fathers went on leave.

It isn’t that parental-leave policies in Korea aren’t generous. Many men cite pressure from their employers and fears of being disadvantaged in their workplaces after taking leave as reasons for not taking advantage of the policy. A report released today (July 25) compiled by the ministry of welfare found that more than 60% of Korean working parents felt uneasy asking for parental leave from their companies, fearing potential consequences including demotions.

The government said that expanded financial support for new fathers and support for smaller companies to allow them to let their employees take parental leave, contributed to the rise in men taking time off. A recently announced slew of government incentives includes extending from one year to two years the period during which men are guaranteed 80% of their normal wages, capped monthly at 1.5 million won ($1,332). The effect of the government initiatives is especially pronounced at smaller firms—the latest figures for 2018 show a 94% on-year increase in men who work at companies with 100 to 300 employees taking paternity leave.

Some private companies are also stepping up to boost incentives for new dads to take parental leave. Lotte Group, one of Korea’s biggest conglomerates, made parental leave mandatory in 2016 and guarantees 100% of employees’ salaries for a month.

Kenya's perspective

Most African countries have some form of official paternity leave, where Kenya is one of Africa’s best on this front, mandating two weeks of paid paternity leave. In 29 countries in Africa, it is just 1-6 days. Tunisia gives one day paternity leave, South Africa and Tanzania give three days, while Ethiopia gives five days of unpaid leave “in the event of exceptional or serious events.”

Unlike the provision for maternity leave in the Employment Act, the provision for paternity leave is not well elaborated in the Employment Act cap 226 of the laws of Kenya. The section on paternity leave in the Employment Act states that a male employee is entitled to two weeks fully paid paternity leave. Casual employees are not entitled to paternity leave since the Employment Act defines an employee and a casual employee as different entities. A male employee can be granted paternity leave on grounds that he or she is the biological father of the child or he/she is the husband of the mother to child. It is not clear whether the father of an adopted child can be granted paternity leave but this can always be granted once the employee requests the employer. Given that paternity leave is not a well defined aspect of the Employment Act, there are a number of questions that often arise in regard to it. The answers some of these questions in the sections below:

Question 1: An employee took his annual leave, which happened to coincide with his wife giving birth. The employee has requested to be allowed to take paternity leave immediately after he completes his annual leave. Is this in order?

Annual leave and paternity or maternity leave, for that matter, are two totally different issues that should be treated as such. Annual leave is an entitlement that an employer must allow the employee to go for and is not based on the discretion of the employer. Section 28 of the Employment Act deals with the issue and it is clear that the wording is couched in mandatory terms. The section reads: "An employee shall be entitled after every 12 months of service with his employer to not less than 21 working days of leave with full pay." (Emphasis is mine). The section uses the word shall, meaning the employer is obligated to let the employee proceed for annual leave upon completion of the required period of employment.

Paternity leave is only applicable to a man whose recognised wife delivers a baby. What this means is that paternity leave is not open to any man, but only those who are married and whose wives are recognised by the employers. Section 29 (8) deals with the issue of paternity leave and again the wording suggests that it is a mandatory provision. It states: "A male employer shall be entitled to two weeks paternity leave with full pay." This also means the male employee must be allowed to proceed on paternity leave as provided above. The section uses the word shall, similar to the wording in Section 28 on annual leave. From the question the employee has been on annual leave and now wants to proceed on paternity leave. There is really nothing wrong with the employee proceeding on paternity leave immediately after his annual leave, as the law clearly states that he can do so.

However, this is not to say that these provisions are cast in stone. As the employer I think it is within your right to negotiate with the employee so he can proceed on paternity leave at a later date, especially if he has been away for long. If you as the employer feel there is a lot of work that needs to be done, you can talk to the employee and agree on when he can proceed on this leave noting, however, that it is mandatory that he be allowed to do so, whether immediately or at a later date. As employers we need to put in place employment policies that will act as guidelines whenever such issues arise. This is to avoid having employees think that the employer is unfair or has some discriminatory practices. The Employment Act actually encourages employers to have policies that inform employees of their rights and duties. It is important to allow the employee to proceed for the paternity leave as it is his right to do so.

Question 2: How much time can a male employee take as paternity leave (i.e twin babies)?

An employee can only take two weeks off work as paternity leave. There are no provisions for extension of paternity leave even if two or three children result from a pregnancy. The Employment Act does not have room for a father to take the two weeks off separately.

Question 3: When should an employee give notice about his intention to go on paternity leave?

There are no guidelines on this. It is prudent for the employee to give reasonable notice in order to give the employer sufficient time to ensure that work goes on smoothly.

Question 4: Is an employee entitled to paternity leave if the baby is stillborn or dies after birth?

Such events are traumatic in nature hence it is prudent that the employer allows the employee some time off. The law does not have provisions for such circumstances.

Question 5: Are the 14 days inclusive or exclusive of public holidays?

In the provision for paternity leave, the law only states that the employee shall be granted ‘two weeks paternity leave.’ It does not specify whether this is inclusive or exclusive of public holidays. This is unlike the provisions for annual leave which state that annual leave days are comprised of ‘working days.’ The decision to make the 14 days inclusive or exclusive of public holiday is subject to the policies of an organization.

Question 6: Can an employee accept monetary reward in lieu of paternity leave?

No. The section on paternity leave clearly states that two weeks fully paid leave should be granted to an employee following the birth of his child. Offering an employee a monetary reward in lieu of leave would be a breach of the beneficence principles which require that employers should look out for the well-being of their employees.

Question 7: Is it time to MOVE UP?

A survey by KPMG found that recruiting and training new employees to replace those who leave after giving birth costs multinationals approximately $47 billion (Sh4.7 trillion) every year. In Kenya, multinational companies are also stepping up to boost incentives for new dads to take parental leave. Here are examples:

1. Microsoft

Microsoft last year (2017) announced that male employees will benefit from six-week paternity leave, three times the legally set time frame of two weeks.“We regard our staff as the lifeblood of our brand, and we place the highest priority on supporting them in all the many aspects of their lives, both inside and outside the workplace... Microsoft understands that family is the most important thing there is. We remain committed to driving a culture of diversity and inclusivity across our company, providing leave benefits to mothers, fathers and caregivers is just one of the ways we honour that commitment,”said Microsoft general manager for West, East, and Central Africa Amr Kamel. The change came two years after Microsoft introduced 20-week paid leave to new mothers and 12-week paid time off for non-birth parents in the US.

2. Nestle Kenya

Nestlé Kenya in the year 2015 introduced a paternity leave of up to six months for male employees who are sole caregivers of their families in a policy change meant to give fathers equal treatment to women. The change was in tandem with the parent company’s new global policy that required all “primary caregivers” be eligible for fully paid leave days of up to 14 weeks, which can be extended to six months on a portion of the workers’ salaries. “There are several instances where a man becomes the sole caregiver in a family; this new policy will see such employees become eligible for provisions on leave days as well as pay,” said Brinda Chiniah, the corporate communications manager for Nestlé Kenya.

3. Safaricom

In March, 2017 global telecom giant Vodafone, Safaricom’s parent company, introduced an enhanced maternity package across 30 countries, potentially benefiting over 1,000 women. Safaricom began implementing it on April 1, increasing the fully-paid maternity leave from three to four months. Vodafone’s programme also introduced a provision for employees returning from leave to work half-day for six months on their full pay.

These firms join global giants like Netflix, Google, Facebook & Amazon that have revised the number of maternity and paternity leave upwards over the past three years. Society is a mirror of the family. The only way to achieve equality in society is to achieve equality in the home. Getting fathers to share the parental leave is an essential part of that. This therefore makes it good for the growth of children, parents and the economy in the long run.

As corporates become more and more socially responsible, increasing the quantum of paternity leave is just another way of contributing to the society. At the same time, an increasing number of people view the idea of paternity leaves as being better aligned with ideals that envision greater parity in gender roles. A male employee who gets paid leaves after becoming a father is able to share the responsibility of childcare better than one who enjoys very few paid leaves or is not entitled to any. This, in turn, encourages the women to remain active members of the workforce, increases their participation in the labour force and reduces gender pay gap. All these factors are beneficial to the society and to the nation.

What thinkest thou? Blessings