Maternity & Paternity Leave in Malaysia: Everything You Need To Know

Introduction

Understanding and correctly implementing parental leave policies is crucial for HR managers and business owners in Malaysia. Recent updates, particularly through the Employment (Amendment) Act 2022, have brought significant changes to maternity and paternity leave entitlements. Staying compliant not only ensures adherence to the law but also fosters a supportive work environment, crucial for employee morale and retention.

This guide aims to provide a clear, comprehensive overview of the current maternity and paternity leave laws in Malaysia, helping you navigate your obligations and support your employees effectively. We’ll cover eligibility, duration, allowances, and other key considerations under the latest labour laws in Malaysia.

Understanding the Latest Changes: Employment (Amendment) Act 2022 & Parental Leave

The Employment (Amendment) Act 2022, which came into effect on January 1, 2023, introduced several key changes to parental leave in Malaysia. These amendments aim to provide better support for working parents and align Malaysia with more progressive international standards.

Key updates include an extension of paid maternity leave and the formal introduction and extension of paid paternity leave for eligible employees. These changes apply to employees covered under the Employment Act 1955. For businesses, this means updating internal HR policies and ensuring HR systems are equipped to manage compliance.

Maternity Leave in Malaysia: A Comprehensive Guide

What is Maternity Leave?

Maternity leave is a statutory period of paid leave granted to female employees in connection with childbirth. Its purpose is to allow mothers to recover from childbirth and care for their newborn child. In Malaysia, maternity leave is primarily governed by the Employment Act 1955.

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Key Legal Provision: Section 37 of the Employment Act 1955

Section 37 of the Employment Act 1955 is the cornerstone of maternity protection in Malaysia. It outlines the entitlement to maternity leave, maternity allowance, and protection against termination of employment due to pregnancy. Employers must be thoroughly familiar with this section to ensure compliance.

Duration of Maternity Leave: Is 98 Days Compulsory?

Yes, under the latest amendments, eligible female employees are entitled to 98 consecutive days of paid maternity leave. This is a mandatory provision for employers.

• Commencement: An employee can commence her maternity leave any time from 30 days before her expected confinement date, or on the day immediately following her confinement, provided she has notified her employer. If she commences earlier than 30 days before confinement and works during this period, she is not considered to have started her leave.
• Calculation: Maternity leave is calculated in consecutive calendar days, including rest days and public holidays.

Eligibility Criteria for Maternity Leave

To be eligible for paid maternity leave and allowance, a female employee must meet the following conditions:

1. She must have been employed by the employer for a period of, or periods amounting in the aggregate to, not less than ninety days during the nine months immediately before her confinement.
2. She must have been employed by the employer at any time in the four months immediately before her confinement.
3. She must have not more than five surviving children at the time of confinement to be eligible for the maternity allowance from the employer. However, she is still entitled to the 98 days of leave, irrespective of the number of children.

These criteria apply to female employees covered by the Employment Act 1955.

Maternity Allowance

• Calculation: Eligible female employees are entitled to a maternity allowance equivalent to their ordinary rate of pay for one day, or at a rate prescribed by the Minister, whichever is higher, for each day of the 98-day maternity leave period. Essentially, this means full pay during maternity leave for eligible employees. Accurate preparation of employee payslips during this period is essential.
• Payer: The maternity allowance is paid by the employer.
• Conditions for Receiving Allowance: Besides meeting eligibility criteria, the employee must notify her employer of her pregnancy and intended leave. She must not work for any other employer during her maternity leave period.

Notification and Application Process

• Employee’s Responsibility: A female employee must notify her employer of her expected confinement and her intention to take maternity leave at least 60 days before her expected delivery date. If she fails to do so without a valid reason, her maternity allowance payment may be suspended until she notifies her employer.
• Required Documentation: Employers may require a medical certificate from a registered medical practitioner confirming the pregnancy and expected delivery date.

Protection Against Termination for Pregnant Employees

The Employment Act 1955 provides significant protection for pregnant employees:

• An employer cannot terminate a female employee during her pregnancy or maternity leave if the termination is due to her pregnancy or confinement.
• If a female employee is terminated while pregnant or on maternity leave for reasons other than her pregnancy (e.g., misconduct, redundancy), the burden of proof lies with the employer to show that the termination was not due to pregnancy or confinement.
• An employer cannot serve a notice of termination on a female employee who is pregnant or suffering from an illness arising out of her pregnancy if her absence from work does not exceed 90 days in aggregate during her pregnancy (excluding maternity leave).

Can an Employee Resign During Maternity Leave?

Yes, an employee can resign during her maternity leave. Standard resignation procedures apply, including serving the contractual notice period.

• If an employee resigns without serving the proper notice, the employer may deduct indemnity in lieu of notice from any salary due.
• It’s important to manage such situations professionally, potentially discussing annual leave encashment if applicable upon resignation.

Provisions for Miscarriage or Stillbirth

If an employee suffers a miscarriage after at least 22 weeks of pregnancy (stillbirth), she is entitled to the full 98 days of maternity leave and allowance, provided she meets the eligibility criteria. If the miscarriage occurs before 22 weeks of pregnancy, she is not entitled to maternity leave but can take sick leave as certified by a medical practitioner.

Extending Maternity Leave: Unpaid Options

The Employment Act 1955 does not explicitly provide for statutory unpaid maternity leave beyond the 98 paid days. Any extension of leave as unpaid leave would be subject to mutual agreement between the employer and employee. Employers may have their own internal policies regarding extended unpaid parental leave.

Paternity Leave in Malaysia: What Employers Need to Know

Introduction to Paternity Leave

The Employment (Amendment) Act 2022 formally introduced and mandated paid paternity leave for eligible male employees in the private sector. This is a significant step towards supporting fathers in their parental roles.

Duration of Paternity Leave

Eligible male employees are entitled to 7 consecutive days of paid paternity leave for each confinement, up to a maximum of five confinements, irrespective of the number of spouses.

Eligibility Criteria for Paternity Leave

To be eligible for paid paternity leave, a male employee must:

1. Be married to the mother of the child.
2. Have been employed by the same employer for at least 12 months immediately before the commencement of such leave.
3. Notify his employer of his wife’s pregnancy and his intention to take paternity leave at least 30 days from the expected confinement or as soon as possible after the birth.

Is Paternity Leave Paid?

Yes, the 7 consecutive days of paternity leave are paid at the employee’s ordinary rate of pay.

Notification and Application Process for Paternity Leave

• Employee’s Responsibility: The employee must notify his employer of his wife’s pregnancy and his intention to take paternity leave, ideally 30 days before the expected confinement or as soon as practicable after the birth.
• When Leave Can Be Taken: The leave must be taken as a continuous block of 7 days and can typically commence from the date of the child’s birth or shortly thereafter, as agreed with the employer.
• Required Documentation: Employers may request supporting documents, such as a marriage certificate and the child’s birth certificate.

Employer Obligations and Best Practices for Parental Leave

Calculating Leave Days Correctly

• Maternity Leave: 98 consecutive calendar days.
• Paternity Leave: 7 consecutive calendar days.
  Using an eLeave management system can help ensure accurate tracking and calculation of these leave types.

Record-Keeping Requirements

Employers must maintain proper records of all maternity and paternity leave taken by their employees, including dates and allowance paid. These records are essential for compliance and audits.

Impact on Other Leave Entitlements

Parental leave (maternity or paternity) generally does not break the continuity of service. Employees typically continue to accrue employee benefits like annual leave during paid parental leave, but policies should be clear on this. Sick leave is distinct and used for personal illness.

Communicating Parental Leave Policies

Develop clear, written parental leave policies that are easily accessible to all employees. These policies should detail:

• Eligibility criteria.
• Leave duration and pay.
• Application procedures.
• Employee rights and protections.
  Clearly communicating these policies is a key aspect of good HR management.

Penalties for Non-Compliance

Failure to comply with the parental leave provisions under the Employment Act 1955 can lead to penalties, including fines. Ensuring compliance is not just about avoiding penalties but also about upholding ethical employment practices.

Frequently Asked Questions (FAQ)

What is the new maternity law in Malaysia?

The new maternity law, effective from January 1, 2023, under the Employment (Amendment) Act 2022, extends paid maternity leave to 98 consecutive days for eligible employees and strengthens protections against termination due to pregnancy.

How much is maternity allowance in Malaysia?

Eligible female employees receive a maternity allowance equivalent to their ordinary rate of pay (full pay) for each day of the 98-day maternity leave period, paid by the employer. This is subject to having no more than five surviving children for allowance eligibility.

What’s the longest period one can take for maternity leave (including unpaid)?

The statutory paid maternity leave is 98 consecutive days. Any extension beyond this as unpaid leave is subject to agreement between the employer and employee and is not a statutory entitlement.

Can an employer terminate a pregnant employee in Malaysia?

No, an employer cannot terminate a female employee specifically because of her pregnancy or while she is on maternity leave, unless it’s for reasons unrelated to pregnancy (e.g., proven misconduct, redundancy), and the employer can prove this.

Who is eligible for paternity leave in Malaysia?

A male employee is eligible for 7 days of paid paternity leave if he is married to the mother, has been employed by the same employer for at least 12 months before the leave, and notifies the employer appropriately. This is limited to five confinements.

Conclusion

The recent amendments to Malaysia’s Employment Act have significantly enhanced parental leave benefits, reflecting a growing understanding of the importance of supporting working parents. For HR managers and business owners, staying abreast of these changes—from the 98-day maternity leave to the 7-day paid paternity leave—is paramount.

By ensuring full compliance, providing clear communication, and fostering a supportive environment, businesses can not only meet their legal obligations but also improve employee loyalty, productivity, and overall workplace well-being. We recommend reviewing and updating your internal HR policies and employee handbooks to reflect these latest parental leave provisions.

Disclaimer: This article provides general information and should not be considered legal advice. Employers should consult with legal professionals or refer to the latest official government gazettes for specific guidance on employment laws in Malaysia.

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