Employers could be required to give newly hired workers paid sick leave from their first day at work if a court petition seeking to scrap the current two-month waiting period succeeds, potentially extending paid absence benefits to newly recruited workers.
Advocate Newton Arori has petitioned the Employment and Labour Relations Court in Nairobi to declare unconstitutional legal provisions that deny new employees paid sick leave before completing two consecutive months of service.
The petition targets Section 30 of the Employment Act, 2007, and Paragraph 12 of the Regulation of Wages (General) Order, which establish when workers become eligible for paid sick leave.
Under Section 30, employees who complete two consecutive months with an employer qualify for at least seven days of sick leave on full pay, followed by seven days on half pay within each 12-month period.
The General Order provides a more generous allowance of up to 30 days on full pay and another 15 days on half pay, but retains the same two-month qualifying requirement.
Mr Arori argues that the provisions leave newly recruited workers without statutory paid sick leave when illness strikes during their first two months of employment.
He wants the court to declare that all employees should enjoy paid sick leave regardless of their length of service, removing the distinction created by the qualifying period.
The advocate says the current arrangement discriminates against workers based solely on how long they have been employed, despite their equal need for medical attention when they fall ill.
"Granting paid sick leave for employees who have served longer than two continuous months, while denying it to those who have served for lesser periods amounts to unjustified preferential treatment based on length of service," he argues.
He says the restriction also places workers in a difficult position because they may have to report for duty while unwell to avoid losing their earnings.
"The denial of paid sick leave to employees who have served less than two months forces them to work while sick, due to fear of loss of earnings, or disciplinary action for abscondment," the petition states.
Mr Arori further argues that withholding wages during illness violates workers' dignity and constitutional protections against cruel, inhuman or degrading treatment.
"It is likewise cruel, torturous, and inhuman to compel a sick person to work, or deduct their wages for the period of their absence occasioned by indisposition," he says.
The petition invokes constitutional guarantees of equality, human dignity, freedom and security, fair labour practices and access to healthcare, among others.
The petition also invokes the Constitution’s Article 43, which protects the right to the highest attainable standard of health.
"Given that no person chooses if or when to fall ill, the denial of sick leave to employees merely on account of their length of service is unconscionably impermissible," Mr Arori states.
He asks the court to declare Section 30 and Paragraph 12 unconstitutional insofar as they restrict sick leave to employees with at least two months' continuous service.
He also seeks a declaration that all employees are entitled to paid sick leave on the same terms. The petition, which is pending hearing and determination, names the Attorney-General as the respondent.
Section 30 requires a medical certificate confirming incapacity and notification to the employer as soon as reasonably practicable. The Employment Act published sets out both conditions. The General Order also requires medical certification and excludes incapacity caused by an employee's gross neglect.
