Kenyan employers must provide lactation stations within their premises for breastfeeding mothers under the Health Cat, 2017 (Act), which took effect in July 2017. To further champion the cause for nursing mothers returning to work, The Breastfeeding Mothers Bill, 2019 was introduced in October 2019, in the National Assembly.

Besides setting standards for lactation stations (e.g., private and sanitary areas equipped with electric outlets and refrigerators), the bill would require employers to provide additional facilities for infants. Clause 3 of the bill would require employers to provide a physical environment that is safe for babies and meet the requirements under the law, as well as programs that develop babies’ cognitive, emotional, social, and language abilities.

Clause 3 of the bill also would provide that any employer that fails to comply with its provisions would be subject to a fine not exceeding 500,000 Kenyan shillings and/or imprisonment for a term not exceeding 1 year, or both. Clause 11(b) of the bill invites the cabinet secretary responsible for labor matters to enact regulations for prescribing the standards of safety for nursing mothers and their babies at the workplace, as well as the inspection and certification of lactation rooms.

Whereas the act states that all nursing mothers would be entitled to take breaks to breastfeed and limit the breaks to 1 hour for every 8 hours worked, the Bill would also slightly extend the break period, as it provides that nursing mothers would be entitled to take a maximum 40 minute-break every 4 hours worked. Further, where circumstances require a baby to be breastfed for a longer period, the mother may be entitled to a longer break period upon the written instructions of a registered medical practitioner. The bill also recognizes that some nursing mothers may require flexible work arrangements and thus would make provision for nursing mothers to apply for such arrangements from their employer.

The bill complements the nondiscrimination provisions in the Employment Act, 2007 because it would prohibit discrimination on the grounds of pregnancy, childbirth, breastfeeding, or any other maternity-related condition. The bill also seeks to provide mothers with public facilities, as it would require individuals or businesses that own, lease, or rent buildings with a minimum occupancy of 50 people to install baby-changing facilities.

The bill has been the subject of debate in Parliament, and has also generated mixed public opinion. Employers, particularly those with small-scale enterprises, are concerned about the additional obligations it calls for. Supporters of the bill praise it for promoting breastfeeding and infant health, and seeking to improve the experiences of working mothers.

Written by Tabitha Joy Raore and Sonal Sejpal of Anjarwalla & Khanna and Roger James of Ogletree Deakins

© 2020 Anjarwalla & Khanna and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.