Maternity and Paternity Leave in Malaysia

Maternity Leave Malaysia

Maternity leave is a type of absence from work that is granted to pregnant employees or those who have recently given birth. It provides them with the necessary time to recover from childbirth, bond with their newborn, and address the various physical and emotional demands of motherhood. It is a crucial workplace benefit that acknowledges the unique needs of expectant and new mothers, enabling them to place their professional lives on hold temporarily, while they deal with a significant life transition.

According to the Malaysia Employment Act 1955,

• The standard maternity leave period lasts a minimum of 98 consecutive days.
• Maternity leave starts no more than 30 days before the expected childbirth date unless certified by a medical officer or registered medical practitioner that the employee is unable to work due to pregnancy.
• If certified, maternity leave can begin anytime within 14 days before the expected delivery date.
• Maternity leave must commence no later than the day following childbirth.
• Any female employee regardless of her marital status is entitled to maternity leave for each confinement.

Is Maternity Leave Paid?

Yes! During the maternity leave period, employees are entitled to receive maternity allowance, which is typically calculated based on their average monthly wage or a rate prescribed by the Minister, whichever is greater. Monthly-paid employees are considered to have received their maternity allowance if they continue to receive their monthly wages during the maternity leave period without deduction.

Requirements for Maternity Allowance:

• Must been employed for a period of, or periods totaling, not less than 90 days in the nine months immediately before her confinement.
• Must been employed at any time in the four months immediately before her confinement.
• A female employee is not entitled to any maternity allowance if, at the time of her confinement, she has five or more surviving children.
• A female employee is required to notify her employer of the expected confinement period and maternity leave start date within 60 days. Failure to do so or commencing maternity leave without any notice to the employer will cause her to lose her entitlement to maternity allowance.

Maternity Leave but without Maternity Allowance? What are the differences?

• Maternity Leave pertains to the sanctioned time off for a female employee to recuperate from childbirth and nurture her newborn.
• Maternity Allowance denotes the financial compensation disbursed during this leave period, aiming to provide financial support to the employee when she is not earning her regular wage due to her absence.

Both the leave and allowance are tied to each other but have separate conditions for eligibility. An employee may qualify for leave but not the allowance. While eligibility for maternity leave isn't directly linked to the length of service and is granted for each childbirth, eligibility for maternity allowance, the payment during maternity leave, does entail specific service duration prerequisites. 

Maternity Allowances from Multiple Employers

If a female employee is eligible to claim maternity allowance from multiple employers, she cannot receive an amount exceeding what she would be entitled to from a single employer.

Termination of a Pregnant Employee

If a female employee is pregnant or experiencing an illness related to her pregnancy, her employer is prohibited from terminating her employment or issuing a notice of termination, unless:

1. A wilful breach of a condition of the contract of service
2. Misconduct
3. Closure of the employer’s business

In instances where a female employee is terminated under the aforementioned circumstances, the employer is responsible for demonstrating that the termination was not based on her pregnancy or a related illness.

Question 1: Can an employer refuse to grant maternity leave?

Employers cannot refuse maternity leave to eligible employees. Such refusal without proper justification may violate labor laws and result in legal consequences. These entitlements are protected rights under the Employment Act, which covers all employees regardless of their wages.

Question 2: Is it possible for an employee to cancel or cut short maternity leave?

According to the updated labor law in Malaysia, maternity leave once initiated spans a fixed duration of 98 days and is fully compensated. It's impermissible to revoke this leave once it has commenced, and employers cannot compel an employee to return to work before the 98-day period elapses.

However, under exceptional circumstances, an employee may choose to return to work during the maternity leave period. In such instances, a formal agreement between the employer and the employee is necessary. Additionally, the employee must present a medical certificate from a doctor affirming her fitness to resume work duties.

As per current legislation, no additional allowances are mandated for employees who opt to return to work early, as they continue to receive their full paid maternity salary. Nonetheless, any supplementary allowance or incentive beyond the statutory requirement remains at the discretion of the employer.

Paternity Leave Malaysia

As per the Employment Act, new fathers are entitled to seven days of paid paternity leave, subject to the following conditions:

1. The employee must be legally married to the mother of the newborn.
2. The employee must have been employed for the preceding 12 months.
3. The expectant father must inform their employer at least 30 days before the expected due date. 

Paternity leave is exclusively offered to eligible male employees for the first five births, irrespective of the number of marriages or spouses.

Question 1: Must employers allow employees to take paternity leave?

Yes! The Employment Act 1955 now extends coverage to all employees, regardless of their wages. This signifies that maternity and paternity leave are now statutory entitlements for eligible employees in Malaysia. However, It represents just the baseline. As an employer, you are encouraged to provide additional time off to your employees based on various factors.

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