Maternity leave and pregnancy protection

Most Malaysian maternity content is a number. Ninety-eight days, up from sixty, effective 1 January 2023, end of article. The number is the least interesting part of Part IX. The part that decides cases is s.41A, which makes terminating a pregnant employee a criminal offence and then makes the employer prove it did not happen for that reason.

The entitlement

Section 37(1)(a)(i) entitles every female employee to maternity leave for an eligible period in respect of each confinement. Section 37(1)(d)(ii) defines the eligible period as a period of maternity leave of not less than ninety-eight consecutive days.

Two points that get muddled:

The leave and the allowance are separate. The leave is an entitlement of every female employee. The allowance is money, and it carries its own conditions. An employee who fails the allowance conditions still takes the leave.

Consecutive days, not working days. The eligible period runs continuously, so rest days and gazetted holidays falling inside it are part of the 98.

When it starts and ends

Section 37(1)(b) fixes the window. Maternity leave may not commence earlier than 30 days before the confinement, nor later than the day immediately following it.

The proviso allows the employer to require an earlier start where the employer’s appointed medical practitioner or a medical officer certifies that the employee cannot perform her duties satisfactorily because of her advanced state of pregnancy — but only within the 14 days preceding the confinement date determined in advance.

Section 37(1)(bb) penalises going too early on the employee’s own initiative: days abstained beyond the 30-day window are not maternity leave and attract no allowance.

Section 37(1)(aa) allows an early return. With the employer’s consent, and on a registered medical practitioner’s certificate of fitness, she may resume work at any time during the eligible period — whether or not she qualifies for the allowance.

The allowance conditions

Under s.37(2)(a), the allowance is payable where both limbs are satisfied:

1. employment by that employer for periods amounting in the aggregate to not less than 90 days during the nine months immediately before the confinement; and
2. employment by that employer at any time in the four months immediately before the confinement.

The rate is her ordinary rate of pay for one day for each day of the eligible period, or the rate prescribed by the Minister under s.102(2)(c), whichever is greater. A monthly-rated employee who keeps receiving her monthly wages without abatement is deemed to have received it.

Section 37(1)(c) removes the allowance — not the leave — where at the time of her confinement she has five or more surviving children, defined as all natural children irrespective of age.

Where more than one employer is liable, s.37(2)(d) caps the aggregate at what a single employer would have paid, and s.37(3) lets the paying employer recover a proportionate contribution from the others as a civil debt.

Section 38 requires the allowance to be paid in the same manner as wages under s.19, in each wage period. Section 39 directs payment to her nominee or legal personal representative if she dies during the eligible period.

The protection nobody leads with

Section 41A(1). Where a female employee is pregnant, or is suffering from an illness arising out of her pregnancy, it is an offence for her employer to terminate her services or give her notice of termination, except on the grounds of:

• (a) wilful breach of a condition of the contract of service under s.13(2)
• (b) misconduct under s.14(1)
• (c) closure of the employer’s business

That is a closed list. Poor performance is not on it. Redundancy is not on it. Restructuring is not on it. Non-confirmation from probation is not on it.

Section 41A(2) then does the heavy lifting: where the service of such an employee is terminated, the burden of proving that such termination is not on the ground of her pregnancy or on the ground of illness arising out of her pregnancy shall rest on the employer. The employer must prove a negative, on its own documents, in front of a body that has already seen the timing.

Two further protections stack on it:

• s.37(4) — terminating a female employee during the period she is entitled to maternity leave is an offence, saved only by closure of the business. Note this exception is narrower than s.41A’s three.
• s.42(1) — where she remains absent after the eligible period because of certified illness arising out of the pregnancy and confinement, it is an offence to terminate or give notice until 90 days after the eligible period expires.

And s.43 voids any condition in a contract of service by which she relinquishes or is deemed to relinquish a Part IX right, substituting the statutory right.

Notification duties

Who	What	When	Consequence of failure
Employee	Notify the employer of the expected confinement and the intended leave start date	within the 60 days immediately preceding the expected confinement	s.40(2) — no allowance for the period before notification
Employee leaving employment while expecting to be confined within 4 months	Notify the employer of the pregnancy before leaving	before leaving	s.40(1) — no allowance from that employer
Employer	Keep a register of allowances paid under Part IX	ongoing	s.44

Common mistakes

Giving notice during pregnancy and timing the effective date after delivery. Section 41A(1) prohibits giving notice of termination, not merely terminating.

Treating redundancy as a safe route. The exception in s.41A(1)(c) is closure of the business, not closure of a role or a department.

Confusing the five-child rule with the leave. It removes the allowance only.

Withholding paid sick leave and maternity allowance together. Section 60F(4) removes paid sick leave for any period during which she is entitled to maternity allowance — they do not stack.

Assuming the entitlement stops above RM4,000. Part IX is not in the paragraph 1A list.

Documenting a performance case only after the pregnancy is announced. Section 41A(2) means the file has to be able to survive the timing.

What’s next

Check that no notice of termination is ever issued to an employee known to be pregnant without written sign-off against the three s.41A exceptions, and set your payroll to run the allowance through the ordinary wage cycle under s.38. The corresponding entitlement for fathers is in paternity leave.