
Maternity Leave Malaysia: An Employer’s Guide
In the tapestry of life’s most exceptional moments, the arrival of a new family member stands unparalleled—a period filled with anticipation, joy, and a fair share of challenges. Within the framework of maternity leave in Malaysia, ‘confinement’ denotes the post-childbirth phase during which a mother is allowed time away from work to recuperate and attend to her and her newborn’s needs. This confinement period holds cultural importance in Malaysia, accompanied by numerous traditional rituals and customs.
Maternity Leave
Maternity leave is the period during which a female employee is allowed to be away from work in connection with childbirth. Maternity leave is a protected right under the Employment Act 1955 in Malaysia. According to the Act:
- Maternity leave cannot start more than 30 days before the expected date of childbirth unless a medical officer or a registered medical practitioner certifies that the employee is unable to perform her duties due to the pregnancy.
- If certified as such, the employee can be required to start maternity leave at any time within 14 days before the expected delivery date.
- Maternity leave must begin no later than the day after childbirth.
- The standard period of maternity leave is a minimum of 98 consecutive days.
Eligibility for Maternity Leave:
Any female employee regardless of her marital status is entitled to maternity leave for each confinement.
Maternity Allowance
Maternity allowance is a financial benefit paid to an employee during her maternity leave. The key points regarding maternity allowance from the Act are:
- An employee is entitled to a maternity allowance if she has worked for the employer for a period of, or periods totaling, not less than 90 days in the nine months immediately before her confinement.
- She must also have been employed by the employer at any time during the four months immediately before her confinement.
- The allowance is payable for the eligible period of maternity leave (not less than 98 consecutive days).
- A female employee is not entitled to any maternity allowance if, at the time of her confinement, she has five or more surviving children.
Eligibility for Maternity Allowance:
To be eligible for the maternity allowance, the employee must meet the employment duration requirement and not have five or more surviving children.
Difference between Maternity Leave and Maternity Allowance
- Maternity Leave refers to the actual time off granted to a female employee to recover from childbirth and care for her newborn.
- Maternity Allowance refers to the financial compensation paid during this leave period. It is meant to support the employee financially when she is not earning her regular wage due to being on leave.
- The eligibility for maternity leave itself does not seem to be directly contingent on the length of service. A female employee is entitled to maternity leave for each confinement.
- However, the eligibility for maternity allowance, which is the payment received during maternity leave, does have specific service length requirements. To be eligible for the maternity allowance, the female employee must have been employed for a period of, or periods amounting in aggregate to, not less than ninety days during the nine months immediately before her confinement. Additionally, she must have been employed by the employer at any time in the four months immediately before her confinement.
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 (for example, if she has five or more surviving children), or she might qualify for both, depending on her specific circumstances and the fulfillment of the conditions outlined by the Act.
Scenario Demonstrating Eligibility for Maternity Allowance
Maria has been working with XYZ Corporation for the past two years without interruption. She recently found out she’s pregnant and is expecting to give birth in six months. Over the last nine months, Maria has worked consistently, far exceeding the minimum requirement of having been employed for at least 90 days in the nine months immediately before her expected date of confinement. Given her employment history and current status with XYZ Corporation, Maria is eligible to receive Maternity Allowance during her maternity leave, as she meets the criteria set forth for entitlement, including being employed for a sufficient amount of time before her confinement.
Scenario Demonstrating Ineligibility for Maternity Allowance
Sophie started working at ABC Enterprises just two months ago. Shortly after joining the company, she discovers she’s pregnant and will likely give birth in four months. While Sophie is entitled to take maternity leave, she does not meet the eligibility criteria for Maternity Allowance, which requires her to have been employed for at least 90 days during the nine months immediately before her confinement. Given that Sophie’s employment duration falls short of this requirement, she is not eligible for Maternity Allowance from ABC Enterprises during her maternity leave.
Scenario Demonstrating Eligibility for Maternity Allowance
Siti was employed at Tech Innovations for 89 days during the first three months of the year before she resigned. She took some time off and then was rehired by Tech Innovations, working for an additional day within the four months immediately preceding her expected date of confinement. In total, Siti has worked for 90 days in the nine months before her expected delivery, meeting the critical condition of having been employed for not less than 90 days during the nine months immediately before her confinement. Additionally, her reemployment and work for one day in the last four months prior to her maternity ensure she fulfills the criteria of being employed by the employer at any time in the four months immediately before her confinement.
Given these circumstances, Siti qualifies for Maternity Allowance. Despite her resignation and period of unemployment, her cumulative employment at Tech Innovations reaches the required 90 days within the nine-month timeframe and includes employment during the crucial four-month period before her delivery. Therefore, Siti is eligible to receive Maternity Allowance during her maternity leave, illustrating the provision’s flexibility in accommodating varying employment patterns among female employees.
Calculation of Maternity Allowance
The maternity allowance for each day of the eligible period is at the employee’s ordinary rate of pay 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.
Claims 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.
Employer Contributions
An employer who pays maternity allowance can recover a proportionate contribution from any other employer(s) for whom the employee worked during the eligibility period.
Termination of Employment
Terminating a female employee’s service during her maternity leave period is an offence, except in cases of business closure.
Payment of Maternity Allowance
The maternity allowance must be paid in the same manner as wages earned during the employment contract’s wage period.
Payment to Nominee on Death
If a female employee dies during her maternity leave, the maternity allowance from the commencement of her leave to the day before her death must be paid to her nominee or legal representative.
Notification Requirements
Female employees must notify their employer of their pregnancy and intended maternity leave commencement date within specific timeframes to be eligible for maternity allowance.
Payment to Nominee
A female employee can nominate another person to receive her maternity allowance on her behalf. Any payment made to the nominee is considered as if it were made directly to the employee, ensuring flexibility and convenience in receiving the allowance.
Restriction on Termination for Pregnancy or Pregnancy-related Illness
It an offence for an employer to terminate the employment of a pregnant female employee or one suffering from an illness related to her pregnancy, except under specific circumstances such as wilful breach of contract, misconduct, or closure of the business. If such a termination occurs, the burden of proof that it was not due to pregnancy or a related illness lies with the employer.
Protection After the Eligible Period
The Act provides protection for female employees who are unable to return to work after the maternity leave period due to pregnancy-related illnesses, extending their job security for an additional ninety days post the eligible period. Termination within this timeframe without proper medical certification of fitness for work is considered an offence.
Invalidity of Contrary Conditions
Any contract condition requiring a female employee to give up her rights under this part of the act is void. This ensures that the statutory rights related to maternity leave and allowances cannot be waived or replaced by less favorable terms in employment contracts.
Record-Keeping Requirements
The Act mandates employers to maintain a register of all maternity allowance payments and related matters as prescribed by regulations. This administrative requirement ensures transparency and facilitates compliance checks.
FAQs on Maternity Leave in Malaysia
1. What is the duration of maternity leave in Malaysia?
Maternity leave in Malaysia has been extended to 98 consecutive days, up from the previous 60 days. This period is designed to start no earlier than 30 days before the expected date of confinement and no later than the day immediately following confinement.
2. How does maternity allowance work?
Eligible employees are entitled to a maternity allowance, which is typically their average monthly wage, for the duration of their maternity leave. To qualify, an employee must have worked for at least 90 days in the nine months immediately before her confinement or at any time in the four months immediately before her confinement. However, this allowance is only for up to the first five children.
3. 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.
4. What should I do if I need to commence my maternity leave earlier than planned?
A female employee is required to inform her employer of her maternity leave start date and the expected confinement period at least 60 days in advance. However, if there is a need to start the leave earlier than planned due to medical reasons, it’s advisable to communicate this change as soon as possible. The employee may commence work at any time during the maternity leave if she has been certified fit to resume work by a registered medical practitioner and with the consent of her employer.
5. Is it possible for an employee to cancel or cut short maternity leave?
Under the updated labour law in Malaysia, once initiated, maternity leave is set at a fixed duration of 98 days and is fully paid. It is not permissible to cancel this leave once it has commenced, and employers are not allowed to compel an employee to return to work before the completion of the 98-day period.
However, there are exceptional circumstances where an employee might return to work during the maternity leave period. In such cases, a formal agreement between the employer and the employee is required. Additionally, it is mandatory for the employee to provide a medical certificate from a doctor confirming her fitness to resume work duties.
As per the current legislation, no additional allowances are required to be provided to the employee who returns to work early, as she would still be receiving her paid maternity salary. Nevertheless, any extra allowance or incentive beyond the statutory requirement is at the employer’s discretion.
6. Can employers terminate the employment of a pregnant female employee?
Through this act’s amendment, employers cannot terminate the employment of a pregnant female employee or an employee suffering from an illness arising from pregnancy, except under the following circumstances :
- Termination due to a breach of the agreed employment contract under section 13(2);
- Termination due to misconduct under section 14(1); and
- Termination due to the employer’s business closure.
7. Would an employee who had a miscarriage be entitled to maternity allowance?
If the female employee suffers a miscarriage after at least 22 weeks, then she is entitled to maternity leave and allowance provided subject to the conditions stipulated in the Employment Act 1955.
Confinement is defined under section 2(1) of the Employment Act 1955 as “parturition resulting after at least twenty-two weeks of pregnancy in the issue of a child or children, whether alive or dead, and shall for the purposes of this Act commence and end on the actual day of birth and where two or more children are born at one confinement shall commence and end on the day of the birth of the last-born of such children, and the word confined shall be construed accordingly”.
8. Are maternity leave and maternity allowance applicable for foreign female workers?
The Employment Act 1955 is applicable to both Malaysian and foreign employees. Therefore, foreign female employees are eligible for maternity leave and maternity allowance, irrespective of whether the child is considered legitimate or otherwise.
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