New Employer Obligations Relating to Persons with Disabilities

The amendments in the 2025 Act are designed to align the law with Article 54 of the current Kenyan Constitution and the provisions of the UN Convention on the Rights of Persons with Disabilities (CRPD), while also establishing stronger enforcement mechanisms to ensure effective implementation.

One of the most significant changes in the legislation is the broadening of the definition of the word “disability.” The 2003 Act defined it as “a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on social, economic or environmental participation.” This definition, as interpreted by the Supreme Court in the case of Simon Gitau Gichuru v Package Insurance Brokers Ltd [2017] KEELRC 566 (KLR), was silent on what constitutes a temporary or permanent disability. The court held that as long as the impairment impacts adversely on social, economic, or environmental participation of an individual, it is deemed to be a disability.

The 2025 Act introduces a durational aspect in the definition by incorporating the phrase ‘long-term effect’ to the definition of disability which is now defined to mean “any physical, sensory, mental, psychological or other impairment, condition or illness that has or is perceived to have a substantial or long-term effect on an individual’s ability to carry out ordinary day to day activities”.

In doing so, the Act acknowledges that certain conditions, though not substantial, may still qualify as disabilities if they have a prolonged effect on the person. This change creates room for courts to recognise impairments that may not be severe at present but are likely to persist and interfere with an individual’s day-to-day activities over time.

Another notable change in the definition is the inclusion of “psychological” impairments as a form of disability signalling a clearer recognition of mental health conditions that may have previously fallen into a legal grey area. While “mental” impairment was present in the definition in the 2003 Act, the addition of the word “psychological” broadens the scope of the definition to include a range of health conditions that do not fall within the strict definition of “mental illness” (such as stress related disorders, burnout, anxiety, grief related conditions etc.). This shift appears to draw directly from the Supreme Court’s reasoning in the MMG v Tribunal Appointed to Investigate the Conduct of Hon. Lady Justice MMG (Petition 10 (E013) of 2022) case, where the court underscored the importance of recognising mental health in the employment context and recommended legislative alignment. Specifically, the court advised that laws such as the Employment Act should impose obligations on employers to maintain safe working environments, ensure that work-related stress does not trigger or worsen mental health conditions, and provide reasonable accommodation to employees with mental illness.

Under the 2003 Act, the National Council for Persons with Disabilities (the Council) was tasked with endeavouring to secure 5% of casual, emergency, and contractual jobs for persons with disabilities. However, this was not a binding requirement and lacked an enforcement mechanism. The 2025 Act requires all employers with at least 20 employees to reserve a minimum of 5% of their employment opportunities for persons with disabilities. This 5% requirement can be seen as a form of affirmative action, which is permitted under Section 5 (3) (a) of the Employment Act (Cap. 226) and Article 27(6) of the Constitution of Kenya, both of which allow for measures to promote equality and eliminate discrimination of persons with protected characteristics. Employers are now also required to submit annual reports to the Council detailing the status of employment of persons with disabilities within their establishments.

Employers are now legally required to implement “appropriate adjustments and modifications” to their work environment to support the inclusion of persons with disabilities. The definition of reasonable accommodation under the 2025 Act has broadened and includes measures such as making facilities accessible, restructuring jobs, modifying work schedules, reassigning individuals to vacant positions, acquiring or adapting equipment, adjusting training materials, and providing qualified readers or interpreters. Notably, the 2025 Act expressly classifies the failure to provide reasonable accommodation as a form of discrimination, thus reinforcing the obligation on employers to take proactive and meaningful steps toward workplace accessibility and inclusion.

Further, the term “reasonable accommodation” now includes the payment of an assistive allowance to employees with disabilities. This provision acknowledges that, beyond physical adjustments to the workplace, individuals with disabilities often incur additional personal expenses related to their functional needs—such as hiring personal assistants, acquiring assistive technologies, or meeting transport and communication costs. By broadening the scope of reasonable accommodation to include financial support, the law seeks to ensure that a portion of the financial burden associated with disability-related needs is borne by the employer, rather than being shouldered entirely by the individual.

The 2025 Act sets the retirement age for persons with disabilities at five years above the mandatory retirement age established by the Government. Currently, the mandatory retirement age for public servants is 60 years, as stipulated under the Public Service Commission Act, Cap 185 (the PSC Act). While the retirement age set out in the PSC Act does not legally apply to employees in the private sector, employers should consider that the retirement age for all employees with disabilities should be five years higher than the normal retirement age for their staff.

Finally, on the issue of tax, while the 2003 Act provided tax deductions of 25% of salaries paid to employees with disabilities and 50% of the costs incurred in modifying workplaces, the 2025 Act expands these incentives further. It introduces additional deductions for expenses incurred by employers in investing in assistive devices and adaptive technologies, including computer programs. Separately, parents and legal guardians who provide care to a person with severe disability and incapable of catering for their basic needs can also now apply for tax exemptions. This marks a significant development from the 2003 Act, which did not extend such benefits to caregivers. Furthermore, donors and organisations making donations, bequests, or subsidies for the benefit of persons with disabilities also qualify for tax incentives.

In summary, the Persons with Disabilities Act, 2025 marks a bold evolution in Kenya’s legal framework for disability rights. For employers, it introduces a strengthened regime of legal obligations aimed at eliminating workplace exclusion and promoting equal treatment for persons with disabilities. The Act imposes a proactive duty to accommodate and sets enforceable standards for non-discrimination, which demand compliance, signalling a shift from voluntary inclusion to mandatory compliance.

Should you have any questions on this legal alert, please do not hesitate to contact Sonal Tejpar,  Rosa Nduati-Mutero or Edwina Warambo. 

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Contributors
1. Leah Muhia – Principal Associate
2. Brian Kibet – Trainee Lawyer