The PWD Act restructures the National Council for Persons with Disabilities (the Council) and expands its functions and powers. To encourage compliance, the PWD Act introduces various incentives and reliefs. Conversely, it also provides for offences and penalties in cases of non-compliance. While ambitious, the PWD Act leaves open questions on how the new powers will be co-ordinated and whether the enforcement mechanism is sufficient to match the breadth of obligations it creates for employers and businesses. This article focuses on the effects of the PWD Act on private sector employers and businesses in Kenya.

Guiding values and principles

Unlike the Repealed Act, the PWD Act establishes fundamental laws that must be followed by all state organs, public officers and persons, including business associations and civil society organisations, emphasising the need for respect for the inherent dignity and individual autonomy, equality and non-discrimination, full and effective participation and inclusion in society, accessibility, and equality of opportunity of PWDs. These principles form the foundation for all obligations and rights established under the PWD Act, creating a framework that extends far beyond traditional disability accommodations.

While these values are important, they are framed broadly and may create uncertainty for employers on how to operationalise them in everyday workplace policies. Without clear benchmarks, businesses risk compliance gaps or over-investment in measures that may not be recognised by regulators.

Key obligations for employers

The PWD Act imposes various obligations on employers which were not previously substantively provided for in the Repealed Act. For instance, the PWD Act now imposes an express obligation on employers not to discriminate against a PWD in job application procedures, hiring, advancement and other terms, conditions and privileges of employment. Further, employers are required to take the measures outlined below

Employment quota of 5%

Where an employer has at least 20)employees, 5% of direct employment opportunities must be reserved for PWDs to secure employment. This is a bold inclusion measure but may be difficult for small and medium enterprises (SMEs), micro, small and medium enterprises (MSMEs) or specialised industries to meet in practice. Additionally, the PWD Act does not provide for phased implementation or exemptions, exposing non-compliant firms to penalties even where qualified candidates may be scarce.

Policies

Employers need to formulate policies and programmes to promote basic human rights, improve working conditions, and enhance employment opportunities for PWDs. While this is a positive initiative, the challenge lies in the fact that the PWD Act does not prescribe minimum policy content, leaving employers to guess what will satisfy regulators and creating a risk of inconsistent enforcement across sectors.

Zero tolerance for discrimination

When recruiting, employers are not permitted to discriminate on account of disability. This aligns with constitutional equality guarantees. However, the PWD Act does not provide clear guidance on when it may be lawful to impose reasonable limitations e.g. in roles that require certain physical capabilities, such as emergency services or manual labour. This lack of clarity may give rise to disputes.

No disability testing

Employers may not conduct any test or examination to establish whether an applicant is a PWD or as to the nature or severity of a person’s disability This protects candidates from intrusive practices but may create tension where employers legitimately need medical fitness assessments for safety-sensitive roles. The PWD Act does not clarify this distinction.

Reasonable accommodation

Employers are required to carry out appropriate modifications in their work premises to accommodate the employment of PWDs. While consistent with international standards, the absence of financial support for all businesses (beyond the proposed tax incentives under the PWD Act) means that SMEs and MSMEs may face disproportionate compliance costs.

Obligations during the usual course of employment

The PWD Act further provides that no PWD shall be dismissed or suffer any reduction in rank on the grounds of disability or acquiring any disability. If any employee with a disability is placed under undue stress or disadvantage in the usual course of employment as a result of their disability, that employee shall be eligible for a position at the same rank with adequate support. Such an employee may, if required by the nature of disability, be deployed to another post with the same pay scale and service and, if it is not possible to adjust the employee against any post, the employee may be kept on a supernumerary post until a suitable post is available or they attain the age of retirement, whichever is earlier. While the provision is well-intentioned, it places the full burden of accommodation and employment continuity on the employer without providing flexibility to adapt to business realities. In practice, it may lead to challenges in implementation and potential disputes over compliance.

The PWD Act sets the age of retirement for PWDs to be 5 years above the mandatory age of retirement set by the Government of Kenya.

In order to confirm compliance with the above requirements, employers are now required to submit an annual report on the status of employment of PWDs within their establishments to the Council. However, as the PWD Act is still quite new, it remains to be seen how these obligations will be implemented in practice. In addition, the PWD Act does not prescribe the reporting format and frequency of audits, leaving gaps that could undermine compliance certainty. These details may, however, be addressed in regulations issued pursuant to the PWD Act.

Substantial financial incentives

The PWD Act doesn’t just impose obligations, it rewards compliance with significant tax benefits. To incentivise compliance and support workplace inclusion, private employers who engage a PWDs and who improve or modify their physical facilities or provide special services to accommodate employees with disabilities are entitled to substantial tax benefits, as set out below.

Tax deduction of 25% on salaries and wages paid to employees with disabilities

A private employer that engages a PWD either as a regular employee, apprentice or learner will be entitled to apply for a deduction from its taxable income equivalent to 25% of the total amount paid as salary and wages to such employee. For example, if an employer pays KES 1 million in annual wages to a PWD employee, it can claim an additional KES 250,000 (25%) deduction from taxable income, over and above the standard wage expense deduction.

Tax deduction of 50% on costs for workplace modifications and reasonable accommodations

An employer that improves or modifies its physical facilities or avails special services in order to provide reasonable accommodation for employees with disabilities shall be entitled to apply for additional deductions from its net taxable income equivalent to 50% of the direct costs of the improvements, modifications or special services. For example, if an employer spends KES 500,000 to install ramps, lifts or accessible bathrooms, it may claim an additional KES 250,000 (50%) deduction from taxable income, in addition to the normal business expense deduction. However, the reimbursement scheme lacks detailed procedures, leaving uncertainty on timelines, eligibility, and funding availability. The high cost of retrofitting may also strain smaller developers, risking partial compliance or project delays.

These tax incentives extend to workplace modifications, assistive technology costs and reasonable accommodation expenses, creating a financial framework that rewards inclusive employment practices while simultaneously addressing the business case for disability inclusion. Although the incentives reflect a progressive policy shift, their robustness depends on clear implementing regulations, which have yet to be issued. In their absence, the business case remains partly theoretical.

Accessibility and infrastructure requirements

The PWD Act establishes accessibility standards for all buildings, transport modes, pedestrian infrastructure and public transport systems, with no building permitted to receive completion certificates without compliance. These standards require suitable entries and exits, universal design standards, accessible facilities at transport hubs, and proper building access features including ramps, elevators, railings and accessible bathrooms.

The Council may also issue adjustment orders for inaccessible premises, services or amenities, requiring owners to undertake necessary modifications at their own expense within specified timeframes. An adjustment order will describe the premises or service, explain why it is inaccessible, and require the owner or provider to make changes at their own expense within a set period. Before issuing an order, the Council must first give notice, specify the changes needed, and allow representations from the affected party. Aggrieved persons may appeal to the High Court within 30 days. Failure to comply with an adjustment order is an offence punishable by a fine of up to KES 5 million or imprisonment for up to 5 years.

This framework is strong on paper but may prove challenging in practice. The requirement that adjustments be carried out “at the owner’s expense” imposes heavy compliance costs, especially for SMEs, MSMEs and service providers. Although the PWD Act allows appeals, litigation could delay projects and increase costs. The effectiveness of this tool will depend on how consistently the Council consults county governments and regulatory agencies, and whether sufficient technical guidance is given to businesses on what constitutes accessibility

What organisations need to do

The PWD Act requires immediate attention from all organisations operating in Kenya, as non-compliance carries severe penalties, while compliance offers both legal protection and significant financial incentives. In practice, the scope covers both employment settings (quotas, workplace policies and reporting) and everyday life contexts (public transport, infrastructure and service delivery). Businesses must separate obligations linked to employment from those tied to customer or public access, as compliance strategies differ significantly.

The interconnected nature of the PWD Act’s provisions means that successful compliance requires a holistic approach that addresses employment practices, physical accessibility, service delivery, information provision and staff training. The lack of guidance from regulators means early adopters will be navigating untested ground, facing both compliance costs and uncertainty over enforcement priorities.

Immediate steps for employers

To ensure compliance with the new legal requirements under the PWD Act and to promote an inclusive workplace for PWDs, employers should take the following immediate steps:

• conduct an internal audit of PWDs’ representation to assess compliance with the 5% quota;
• update human resource policies to include non-discrimination, accommodation procedures and reporting obligations;
• budget for workplace modifications and explore available tax deductions;
• establish a reporting mechanism to prepare annual returns for the Council; and
• train managers and human resource staff on the PWD Act’s provisions and how they differ from everyday non-employment obligations.