General Article : Laws on Maternity Leave
First and foremost, the current law (as it stands) is that ALL female employees are entitled to maternity leave of 60 consecutive days. Many employers are under the mistaken impression that it is 90 days, but this is due to the misconception that the law has changed.
To explain this very briefly-
– Maternity leave was only proposed to be changed, and this proposal was made by the previous Prime Minister under the previous government during the Budget speech, sometime in 2017. A proposal in a Budget speech does not mean that there is a change in law. In order for a law to be changed, the government has to go through the proper channels to do so (eg introducing an amendment Bill in Parliament, tabling it in Dewan Rakyat and Dewan Negara, voting, obtain Royal Assent, etc);
– This proposal was reported in the media, and many employers equated the Budget speech to be a change in the law. Consequently, employers, on their own accord (based on their erroneous assumption that the law has already been amended), decided to provide a 90-day maternity leave for their female employees.
Employment Act 1955
The Employment Act provides that ALL female employees are entitled to maternity leave of 60 consecutive days. Therefore, maternity leave is guaranteed by statute / law.
Although it is commonly understood that the Employment Act 1955 applies only to certain categories of employees, section 44A explicitly states that ALL female employees regardless of their salary are entitled to maternity leave.
In order to be entitled to maternity leave, the requirements are-
– The employee is female;
– The female employee has satisfied the definition of “confinement” in the Employment Act 1955. Note- this is not “confinement” that is commonly understood. It is not the time spent in confinement after delivery of a child. In the Employment Act 1955, “confinement” means parturition (i.e the process of giving birth/delivering) resulting after at least twenty-two weeks of pregnancy in the issue of a child or children, whether alive or dead.
Therefore, with that in mind, to reiterate this point- ALL female employees, regardless of how much they earn, are entitled to maternity leave of 60 days as long as parturition results after at least 22 weeks of pregnancy, regardless of whether the child delivered is alive or dead.
Female employees need not be married to be entitled to maternity leave.
Aside from the above requirements, the other consideration is whether the female employee can still receive her salary if she takes that 60 days off. The short answer is YES, the female employee can still receive her salary for that 2 months, but she must satisfy certain requirements. If she does not satisfy the certain requirements, then she will go on maternity leave, without salary. It is akin to unpaid maternity leave.
The salary that is received during the 60-day maternity leave, is classified as a “maternity allowance” in the Employment Act 1955.
The law states that a female employee who gets her monthly salary during her maternity leave is deemed to have received her maternity allowance. Therefore, in that context, maternity allowance = monthly salary.
In order to be eligible to maternity allowance during the maternity leave, the 3 requirements are: –
· The female employee must have worked with the employer for at least 90 days during the pregnancy period; AND
· The female employee was in employment with the employer ‘at any time’ during the 4 months preceding delivery; AND
· The female employee does not have 5 or more surviving children.
It is also pertinent for employers to note that just because a female employee agrees to it, it does not mean that the employer can request the female employee to return to work earlier which results in the maternity leave period being less than 60 days. Section 43 very clearly states that “Any condition in a contract of service whereby a female employee relinquishes or is deemed to relinquish any right under this Part shall be void and of no effect and the right conferred under this Part shall be deemed to be substituted for such condition.”
The Employment Act 1955 is expected to be amended in a major way. The Ministry of Human Resources issued out a document for public engagement titled- “Proposed Amendments to the EA” on its website sometime last year. In that document, the proposal was to increase the maternity leave to 98 days. In terms of the amendments, there were time frames and dates that were mentioned but to date, the Employment Act 1955 is yet to be amended. Therefore, the current law of 60 days remains, unless and until the amendments come into effect.
The articles posted are for general information purposes only and should not be construed as legal advice. Facts and circumstances differ from case-to-case. Please consult your lawyer for specific legal advice and action to be taken.
This article is brought to you by Justin Lee and is copyrighted accordingly. Justin is an employment law specialist who can advise, draft and train your human resource managers.