Maternity Leave in Malaysia – A Practical Guide.

Let’s talk about maternity leave in Malaysia and what the law really says about it. This is a very important benefit because it offers protects the welfare of female employees by allowing them to take time off after childbirth to take care of their newborn.

This article will help you break down maternity leave in a structured manner so that you will have a better understanding to implement it correctly or use it for your own benefit.

(A) Why is Maternity Leave Important in Malaysia?

According to the date in from World Bank, female labor force in Malaysia is 51.8% and this signifies the importance of women in boosting the Malaysian economy. This also means that the welfare of women employees and their needs must be taken care of. One of it is about being able to take care of their newborn child.

Maternity leave in Malaysia has had a place in Malaysian Employment law for a long time. The government has always emphasized the importance of this benefit for the female working population. Although one may argue that some other countries have a far better allocation, Malaysia is heading towards the right direction.

Every employer must maintain a record of any employees who go on maternity leave and notify the Labor Department accordingly.

However, most employers and employees do not really understand how maternity leave really works. Unlike paternity leave which much easier to understand, maternity can be a bit confusing. Therefore, the practice of maternity leave in most companies may be simplified and incorrect.

(B) What Is the New Maternity Leave in Malaysia?

You can read all about maternity leave in Part IX Employment Act 1955 under Section 37(1). This provision allows all female employees to be eligible to apply for maternity for a stipulated time. 60 days was the previous entitlement.

However, beginning January 2023, amendment was made to the Employment Act 1955 to change the 60 consecutive days to 98 consecutive days.

The keyword here is consecutive which means it includes weekends and public holidays.

(C) 2 Important Aspects of Maternity Leave.

There are 2 important components in the maternity leave as outlined by the Employment Act 1955.

(i) Maternity Leave

• This refers to the period of leave an employee is entitled to.

(ii) Maternity Allowance

• This refers to the payment that must be paid by the employer to the employee during the confinement period. This is usually the monthly salary.

In most scenarios, the maternity and the maternity allowance goes hand in hand. So, once the employee starts a maternity leave, the company continue to pay salary throughout the confinement period. Simple and straightforward practice.

However, this may not always be the case. An employee can go on maternity leave, but she may not be eligible for maternity allowance.

This is where you need to understand the link between these 2 aspects.

(D) Maternity Leave Eligibility.

The first thing you need to do is to establish if an employee is eligible for maternity leave. The eligibility is based on a few criteria which you can use as a checklist.

1. Gender.
2. Confinement definition.
3. Confinement start date.

(i) Gender

• Very simple criteria here. If you are a female employee who is pregnant, you will be eligible for this benefit. The employee does not have to be legally married to be eligible.

(ii) Confinement definition

• The word confinement is very important in maternity leave.
• According to Employment Act 1955, a female employee is considered to be in confinement only if she gives birth at least 22 weeks (5 months) after pregnancy.
• Therefore, if an employee wants to apply for maternity before the 5th month of her pregnancy, she will not be eligible. Any days taken before 22 weeks should be counted as sick leave.

Date of giving birth (22 weeks or more)	How early can the employee go on maternity leave?	How late can the employee go on maternity leave?
31st August	1 August	1 September

Example:

• Confinement date at 22 weeks or more: 31st August
• The earliest the employee can take maternity leave: 1 August
• Employee starts actual leave: 15 July
• 15 July to 31 July: To be treated as sick leave / annual leave / unpaid leave.
• 1 August to 20 Oct: Maternity leave (less than 98 days)

(iii) Confinement start date

• An employee cannot take maternity leave 30 days before her confinement or later than 1 day following her confinement.
• If an employee takes maternity leave much earlier than 30 days before her confinement, she will not be entitled for maternity leave for the excess days.

(E) Maternity Allowance Eligibility.

Now that you have established that the employee has met the maternity leave eligibility above, it is time to know if the employee is eligible for maternity allowance.

So long as you are paying the employee’s salary, you have covered the maternity allowance. There is no need to pay additional of special allowance here.

An employee who is eligible for maternity leave is not automatically entitled to claim maternity allowance. There is a set of conditions that she needs to meet to be eligible.

1. Date of starting the maternity leave.
2. 5 surviving children.
3. Period of employment before confinement.
4. Resignation from work before confinement

(i) Date of starting the maternity leave.

• We have already established that maternity can only start if the employee is at least 22 weeks pregnant and if she is 22 weeks pregnant, she can start the leave at least 30 days before the confinement or 1 day later.
• Therefore, if the employee starts the maternity leave earlier than 30 days before she gives birth, those days which she has taken in excess of that 30 days will not be eligible for maternity allowance.

Example:

• Confinement date at 22 weeks or more: 31st August
• The earliest the employee can take maternity leave: 1 August
• Employee starts actual leave: 15 July
• Maternity leave duration: 15 July to 20 October (98 days)
• 15 Jul to 31 Jul: No maternity allowance (to be treated as sick leave / annual leave / unpaid leave)
• 1 August to 20 Oct: Maternity allowance (less than 98 days)

(ii) Five surviving children.

• The law in Malaysia only provides maternity allowance up to five surviving children. Therefore, if the female has five or more surviving children at the time of giving birth, she is not entitled for maternity allowance.
• Adopted and stepchildren are excluded here. It must be the employee’s own natural children.

(iii) Period of employment before confinement.

This requirement is mainly for new employees who are less than a year in your organization or if you are about to hire a new employee who is pregnant.

There are 2 requirements here and so long as the employees, fulfills one of them, she will be entitled to receive maternity allowance. Read the requirements below carefully:

(a) 90 days employment during the 9 months pregnancy before confinement.

• The employee must at least be employed no less than 90 days during the 9 months pregnancy.
• This is a very general and minimum requirement and most employee will meet this criteria.

(b) 4 months employment before confinement.

• If the employee needs to go on confinement earlier than planned due to unforeseen circumstances, she must be employed at least 4 months prior to confinement.
• You should look at this requirement especially for new employees.

(iv) Resignation from work before confinement.

Your employee is resigning from the Company and her confinement starts within 4 months from the date she leaves, however she did not inform the employer about this before she left. In this case, she will not be entitled for maternity allowance.

Example

• Last day at work: 30 March
• 4 months period within 30 March: April to July
• Confinement happens on Jun 20th: It is within the 4 months period
• Employee informed employer before leaving: Therefore, she is entitled for the maternity leave.
• Employee did not inform employer before leaving: Therefore, she is not entitled for the maternity leave.

(F) Additional Important Things You Must Know About Maternity Leave in Malaysia.

(i) Can an employee claim maternity leave from 2 employers?

Yes, she can, however the total amount of maternity allowance that she can claim must not exceed more than what she earns from one employer whichever higher.

As an employer, you may not realize that the employee is taking up a second permanent employment unless she declares to you. So, if it is too difficult to detect, just do your part and pay the maternity allowance as per regulation.

(ii) Can an employer terminate an employee during maternity leave?

Absolutely cannot. It is deemed as an offence.

However, if you have to shut down your business at the time when an employee is on maternity leave, the termination of that employee is valid.

(iii) What if the employee passes away during maternity leave?

The employer still needs to pay the maternity leave to her nominee or her legal representative.

(iv) When should an employee inform and employer about her intention to take maternity leave?

An employee must inform her employer about her intent to take maternity leave and when is the start date of her leave within 60 days before her expected confinement.

If the employee fails to inform at all, the maternity allowance can be suspended until she notifies the employer. Notification can be in writing, orally, from a supervisor or any employee. There is no rule here that she must provide a letter.

But please take note that just because the employee fails to notify the employer, her maternity cannot be denied at all. It still must be provided as soon as the employer receives the notification.

As best practice, the employer can remind the employee to provide notification on time to make this process much easier.

(v) What if an employee does not come back to work after maternity leave?

If the employee is unable to return back to work due to medical reasons that is associated with the pregnancy or confinement, the employer must wait for 90 days after the end of the maternity leave before making a decision to terminate the employment.

It is best for the employer to look at the situation by getting a medical opinion on the employee’s condition to work before taking action.

If the employee does not have a valid reason as to why she did not return to work, the employer can treat this as a misconduct and take the appropriate disciplinary action according to the Company policy.

(G) Conclusion

Hopefully you now understand much better regarding the components that make up maternity leave in Malaysia. What is explained in the Employment Act 1955 can be very confusing due to legal jargons and terms. As an employee, you need to know your eligibility status and as an employer you need to have a proper maternity leave policy and process to manage this benefit.