The statutory period of maternity leave has been increased from 60 days to 98 days, as per section 12 of the Employment (Amendment) Act 2022
The Employment Act 1955 is up for a major overhaul through its successor, the Employment (Amendment) Act 2022, due to come into force on 1 Jan 2023.
Previously, the Employment Act 1955 only concerned a specific sector of the working population in Malaysia in that the 1955 Act only concerned employees who earned up to RM2,000/month with only some sections applying to all employees. However, the incoming Employment (Amendment) Act 2022 will now apply to ‘any person who has entered into a contract of service’ and conversely only a few sections of the incoming Act will not apply to employees earning more than RM4,000/month. Therefore, employers ought to accord some time to consider the effects of the incoming Employment (Amendment) Act 2022.
One aspect of the incoming Employment (Amendment) Act 2022 that has been at the centre of attention is the matter of maternity leave.
Maternity Leave and Protection
First and foremost, the statutory period of maternity leave has been increased from 60 days to 98 days, as per section 12 of the Employment (Amendment) Act 2022.
Secondly, irrespective of whether or not they are entitled to receive maternity allowance from their employer nor whether they have fulfilled certain conditions previously imposed by the Employment Act 1955, a female employee entitled to maternity leave may, with the consent of her employer, commence work at any time during the statutory 98-day period provided she has been certified fit to resume work by a registered medical practitioner.
The Employment (Amendment) Act 2022 also newly introduces prohibitions against the dismissal of pregnant employees suffering from illness arising from their pregnancy, except on grounds of wilful breach of contract, misconduct or closure of the employer’s business.
Where there is such prohibited dismissal, the 2022 Act states that it is for the employer to prove that such dismissal was not on grounds of the employee’s pregnancy or on grounds of illness arising out of pregnancy, should the dismissed female employee file a claim before the Industrial Court.
Failure to Comply with Maternity Leave and Protection
With regards to the failure to grant maternity leave, the incoming 2022 Act does not amend the provisions of the Employment Act 1955 relevant to the effects of non-compliance of the maternity leave and protection per section 43 and section 94 of the 1955 Act.
Under the 1955 Act, any employer who fails to grant maternity leave will be liable to pay maternity allowance in addition to the wages payable to her and the amount of maternity allowance as determined by a court. The 1955 Act also provides that any female employee who relinquishes their statutory maternity leave and protection will be automatically void.
As for maternity protection, a termination of employment of a pregnant female employee due to her pregnancy or any illness arising out of pregnancy will be void and have no lawful effect under the 2022 Act.
Another ground-breaking aspect of the 2022 Act is the introduction of paternity leave into Malaysian law.
The Act newly envisions at section 23 of the 2022 Act that married male employees shall be entitled to paid paternity leave at his ordinary rate of pay for a period of seven consecutive days in respect of each confinement.
Note that this is not “confinement” that is commonly understood, i.e., time spent in confinement after delivery of a child. Rather, “confinement” here refers back to the definitions of the Employment Act 1955, where confinement there is defined as parturition resulting after at least twenty-two weeks of pregnancy in the issue of a child or children, whether alive or dead, commencing from the actual day of birth.
The 2022 Act imposes a few conditions on the entitlement of paternity leave, in that a married male employee can only be entitled to paternity leave if he has been employed by the same employer at least twelve months immediately before the commencement of paternity leave and he has notified his employer of his spouse’s pregnancy at least 30 days from the expected confinement or as early as possible after the birth.
The incoming Employment (Amendment) Act 2022 is set to make some major changes to employment law in Malaysia, to the extent that the Malaysian Employers Federation resorted to calling upon the government to delay implementing the 2022 Act (now reflected in the new date of 1 Jan 2023).
With maternity protection and paternity leave being one of the major new rights employees will find themselves with starting from 1 Jan 2023, employers are advised to review all existing employment contracts, handbooks, and policies to ensure compliance with the incoming 2022 Act to prevent incurring avoidable financial costs.
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This article is posted 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.