6 Legal Facts about Maternity Protection in Malaysia

Introduction

The need for maternity protection in employment lies on the ground of humanity and its effects are societal in nature, to quote:-

“Safe maternity and health care for mother and infant survival are at the core of life itself. It is also central to decent work and productivity for women and gender equality at work …” –

Maternity and paternity at work: Law and practice across the world – Overview, published on 13 May 2014 by International Labour Organization 

#1 Every Female Employee is Entitled to Maternity Protection

The laws in this area are provided under the Employment Act 1955 (‘EA’). It is also pertinent to know that most provisions under the EA are only applicable to employees with wages not exceeding RM2000 a month or those falling within the First Schedule of Employment Act 1955). However, when it comes to provisions relating to maternity protection, section 44A of the EA (which was inserted in the EA by Parliament with effect from 01.04.2012) provides that such protection is applicable to all female employees irrespective of the amount of their wages. Therefore, it is mandatory for employers to comply with these provisions.

In fact, any employment contract or contract of service that provide otherwise in this respect shall be void and of no effect.

Besides that, section 37(4) of the EA was also inserted at the same time to provide strictly against any employer who terminates the service of a female employee during maternity leave unless such termination is on the ground of closure of the employer’s business, which the latter shall subject to the relevant law on retrenchment.

#2 Maternity Protection in the Form of Maternity Leave shall consist of at least 60 days’ Paid Leave (‘Maternity Paid Leave’)

Every female employee is entitled to at least 60 consecutive days’ maternity leave which shall be paid leave in respect of each confinement.

Confinement simply means ‘parturition’ or the act of giving birth to a child whether alive or death (emphasis added) after 28 weeks of pregnancy.

#3 Each female employee is entitled to maternity paid leave for up to 5 times in respect of 5 children who are still surviving or living.

Beyond that, the female employee shall still be entitled to maternity leave. However, such maternity leave will be treated as unpaid leave instead.

#4 Maternity paid leave is to commence no earlier than 30 days immediately before the confinement and no later than the day immediately following confinement

In the unavoidable circumstances where maternity leave have to be commenced earlier than the prescribed period due to medical reasons, the leave shall not be treated as maternity leave, but rather unpaid leave unless it can be substantiated as annual leave, medical leave or such other paid leave as prescribed under the EA or even as provided in the employment contract.

#5 Maternity paid leave shall confine to a female employee who has been employed at any time in 4 months immediately before her confinement and for not less than 90 days during the 9 months immediately before her confinement

This is an amendment brought about with effect from 01.04.2012 in favour of the employer to avoid the cost of paying for someone on leave immediately after the commencement of employment.

Previously, most employers have to ensure that the potential employees are subject to being declared fit by their appointed doctors, in particular, that no medical condition requiring long-term management, such as confinement.

#6  60 days’ prior written notice is required

Maternity paid leave is only allowed provided not less than 60 days’ prior written notice is given of the expected date of confinement in respect of the intended commencement date of maternity leave failing which, such pay during the maternity leave shall be suspended until notice is given to the employer with reason.

However, in specific circumstances when a female employee is about to leave her employment and who knows that she will be subject to confinement within 4 months effective from the date which she leaves, she shall before leaving her employment, notify her employer of her pregnancy, otherwise, no maternity leave will be given.

About the Author

This article was written by Chia Swee Yik, Partner of this Firm, who has provided advice on employment law.

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