Maternity and Paternity Leave in Malaysia: Compliance and Best Practices

Maternity and paternity leave are basic employee rights under Malaysia’s Employment Act 1955. The (Amended) Employment Act 2022 which took effect on 1st January 2023 introduced the most significant overhaul of parental leave provisions for decades. 

Maternity leave was extended from 60 to 98 days, statutory paternity leave was introduced for the first time. The Act's coverage was expanded to all employees regardless of salary level.

If you haven't yet updated your HR policies, employment contracts, or internal processes to reflect these changes, this guide is your starting point.

Why the 2023 Amendments Matter to You as an Employer

Before 2023, maternity leave stood at 60 days and paternity leave had no statutory basis at all. The Employment Act also only automatically covered employees earning RM2,000 or below per month.

The 2023 amendments closed these gaps:

• Maternity leave increased from 60 to 98 consecutive days
• Paid paternity leave of 7 consecutive days was introduced for the first time
• Coverage now extends to all employees, regardless of their monthly wage

If you previously managed parental leave differently for managers, executives, or other higher-salaried employees, those informal arrangements need to be formalised. These statutory minimums now apply to all your employees regardless of their salary.  

Maternity Leave: Your Obligations as an Employer

Every female employee (regardless of marital status) is entitled to a minimum of 98 consecutive days of maternity leave per confinement. This is a non-negotiable statutory entitlement and should not go below. 

The leave is counted in calendar days such as weekends and public holidays are included within the 98-day period, not added on top of it. This is worth clarifying since it affects how the leave period is calculated.

Maternity leave can start anytime from 30 days before the expected delivery date. If a medical officer certifies that the employee is unable to work due to her pregnancy, leave can begin within 14 days before the expected delivery date. In all cases, maternity leave must begin no later than the day after childbirth. The employee informs you when her leave will start but does not need your approval to take it.

Maternity Leave Allowance

During the 98-day leave period, eligible employees are entitled to a maternity allowance paid at their ordinary rate of pay. In other words, their full salary continues uninterrupted.

Two conditions determine eligibility for the maternity allowance:

• The employee must have worked for you for a period of, or periods totalling, at least 90 days in the nine months immediately before her confinement
• She must have been employed by you at any time in the four months immediately before her confinement

For practical purposes, monthly-paid employees are considered to have received their maternity allowance if they continue to receive their monthly wages throughout the leave without any deduction. Your payroll process should not pause or reduce salary payments during the maternity leave period for eligible employees.

Termination Protections for Female Employees

Under Section 41A(1) of the Employment Act 1955, you cannot serve a notice of termination to a female employee who is pregnant or on maternity leave. This applies even if the termination would have happened regardless of the pregnancy. The only legally valid grounds for terminating a pregnant employee are: 

• Wilful breach of her employment contract and misconduct.
• Closure of your business.

Critically, if a termination is challenged you are required to demonstrate that the dismissal was not related to the pregnancy or pregnancy-related illness. This is a reversal of the usual burden and means you need to be especially careful about timing and documentation if any disciplinary action is being considered for a pregnant employee.

An employee who is unable to return to work after maternity leave due to pregnancy-related illness is also entitled to a further 90 days of job protection beyond the leave period. You cannot replace her during this extended window unless you can demonstrate that the termination met one of the narrow exceptions above.

Early Return to Work

An employee may choose to return before the 98 days are up, but this requires two things: 

1. Your consent as the employer.
2. Medical certificate from a registered medical practitioner confirming that she is fit to resume work.

You cannot push or pressure an employee to return early, and any early return must be mutually agreed upon and properly documented.

Paternity Leave: A New Statutory Obligation

Before 2023, paternity leave was entirely at your discretion as an employer. Paternity leave is now a legally mandated benefit, and refusing it to an eligible employee can expose your business to legal disputes and penalties.

Eligible married male employees are entitled to 7 consecutive days of paid paternity leave for each birth, up to a maximum of five births across the employee's lifetime (regardless of the number of marriages or spouses). The 7 days are consecutive calendar days, inclusive of weekends and public holidays.

The pay during paternity leave is at the employee's ordinary rate of pay. This means, their standard salary continues for those 7 days without deduction.

Who is Qualified for a Paternal Leave

For an employee to be eligible, they must meet the following criteria:

• The employee must be legally married to the mother of the child.
• He must have been employed with your company for at least 12 months immediately preceding the leave.
• He must have notified you at least 30 days before his spouse's expected due date, or as soon as reasonably possible after the birth.

If a male employee is under your employment for less than a year at the time of birth, they don’t qualify for the statutory 7-day entitlement. It is up to your discretion as an employer to choose to extend paternity leave to employees who don’t meet the service threshold. 

If an employee meets all eligibility criteria, you cannot refuse the leave. Doing so without valid justification is a breach of labour law.

A Summary of Maternity and Paternity Leave in Malaysia

How to Remain Compliant with the Maternity and Paternity Regulations

RecruitGo can help ensure your company abides by the recent amendments to the Employment Act in Malaysia. With our Employer of Record (EOR) services, we act as the legal employer of your staff in Malaysia. 

With our EOR, we will help you draft employment contracts and offer letters. We can review all contract templates to ensure they reflect 98-day maternity leave and 7-day paternity leave. 

We make sure that your payroll also takes into account maternity and paternity days. To avoid disputes, we make sure that payroll for employees under leave are uninterrupted throughout the entire leave period. 

Want to build a team in Malaysia even without a legal entity? Contact our local HR experts for a free consultation.