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Malaysia - Maternity protection - 2011


LAST UPDATE

10 November 2011

Data quantity

NORMAL

SOURCES


Name of Act

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Name of Act

Employment (Minimum rate of maternity allowance) Regulations 1976. Dated 1 January 1977.

Name of Act

D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

Name of Act

Act 4 Employe’s Social Sercurity Act 1969

Name of Act

Name of Act

Act 514 Occupational safety and health Act 1994

Other source used

Other source used

Other source used

MATERNITY LEAVE


Scope

Maternity leave under the Employment Act cover all female employees (unionized and non-unionized) in the private sector. The Act only applies to Peninsular Malaysia, while Sabah and Sarawak have their own labour ordinances.
Employment Act 1955 §2, §2B, and Schedule 2

Qualifying conditions

There are not qualifying conditions for a female worker in order to be entitled to maternity leave.
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

Duration


Compulsory leave

Maternity leave shall not commence earlier than a period of thirty days immediately preceding the confinement of a female employee or later than the day immediately following her confinement.
Employment Act 1955 §37(1)(a) and (b)

General total duration

Not less that 60 consecutive days in respect of each confinement. A female employee is entitled to commence her maternity leave at any time during the 30 days immediately preceding her confinement or not later than the day immediately following her confinement.
Employment Act 1955 §37
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955 §12
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Historical data (year indicates year of data collection)
  • 2004: Sixty days
  • 1998: Sixty days
  • 1994: Sixty days

Extension

There are not provisions on extension of maternity leave in case of multiple births.
Employment Act 1955 §37-44a

Leave in case of illness or complications

Provided that where a medical officer or the registered medical practitioner appointed by the employer certifies that the female employee as a result of her advanced state of pregnancy is unable to perform her duties satisfactorily, the employee may be required to commence her maternity leave at any time during a period of fourteen days preceding the date of her confinement as determined in advance by the medical officer or the registered medical practitioner appointed by the employer.

Where a female employee abstains from work to commence her maternity leave on a date earlier than the period of thirty days immediately preceding her confinement, such abstention shall not be treated as maternity leave and she shall not be entitled to any maternity allowance in respect of the days during which she abstains from work in excess of the period of thirty days immediately preceding her confinement.

Where a female employee remains absent from her work after the expiration of the eligible period as a result of illness certified by a registered medical practitioner to arise out of her pregnancy and confinement and to render her unfit for her work, it shall be an offence,
until her absence exceeds a period of ninety days after the expiration of the eligible period, for her employer to terminate her services or give her notice of termination of service.
Employment Act 1955 §37
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955 §12

RELATED TYPES OF LEAVE


Parental leave

Not provided.
Employment Act 1955

Paternity leave

Not provided.
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

Adoption leave

Not provided.
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

RIGHT TO PART-TIME WORK

Not provided.
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

CASH BENEFITS


Maternity leave benefits


Scope

Maternity cash benefits are the employer’s responsibility, therefore the scope of the Labour Code applies for both maternity leave and maternity cash benefits.
Maternity leave under the Employment Act covers all female employees (unionized and non-unionized) in the private sector. The Act only applies to Peninsular Malaysia, while Sabah and Sarawak have their own labour ordinances.
Employment Act 1955 §2,2b, 37,38

Qualifying conditions

A female employee will not be entitled to any maternity allowance if at the time of her confinement she has 5 or more surviving children (children means all natural children).

A female employee will only be entitled to the maternity allowance if:

She has been employed by the employer for a period of. or period amounting in the aggregate to, not less than 90 days during the nine months immediately before her confinement.

She has been employed by the employer at any time in the four months immediately before her confinement.

A female employee who is about to leave her employment and who knows or has reason to believe that she will be confined within four months from the date upon which she leaves shall before leaving her employment notify her employer of her pregnancy and if she fails so to do, she shall not be entitled to receive any maternity allowance from such employer.
A female employee shall within a period of sixty days immediately preceding her expected confinement notify her employer of it and the date from which she intends to commence her maternity leave and if she commences such leave without so notifying her employer, the payment of maternity allowance to her may be suspended, notwithstanding section 38, until such notice is given to her employer.
The failure to give any such notice within the period specified in this section shall not prejudice the right of a female employee to receive any maternity allowance it it is found that the failure was occasioned by mistake or other reasonable cause.
Employment Act 1955 §37, 38, 39, 40
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

Duration

For the period of maternity leave (60 days)
Employment Act 1955 §37(1)(a) and (b)

Amount

Maternity allowance is based on her monthly wages if she is employed on a monthly rate of pay. Otherwise, a female employee who is eligible for maternity allowance shall be entitled to receive her ordinary rate of pay for each day of the eligible period of maternity allowance or at the rate prescribed by the Minister, whichever is the greater.
The minimum rate of maternity allowance for each day of the eligible period to which a female employee is entitled is 6 ringgit.
Employment Act 1955 §37(2)(b) and (c)
Employment (Minimum rate of maternity allowance) Regulations 1976. Dated 1 January 1977. §2
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Historical data (year indicates year of data collection)
  • 2009: Maternity allowance is based on her monthly wages if she is employed on a monthly rate of pay. Otherwise, a female employee who is eligible for maternity allowance shall be entitled to receive her ordinary rate of pay for each day of the eligible period of maternity allowance or at the rate prescribed by the Minister, whichever is the greater. The minimum rate of maternity allowance for each day of the eligible period to which a female employee is entitled is 6 ringgit.
  • 2004: One hundred percent
  • 1998: One hundred percent
  • 1994: One hundred percent

Financing of benefits

The employer
Employment Act 1955 §37(1)(a)
Historical data (year indicates year of data collection)
  • 2009: The employer
  • 2004: Employer
  • 1998: Employer
  • 1994: Employer

Parental leave benefits

Not provided.
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

Paternity leave benefits

Not provided.
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

Adoption leave benefits

Not provided
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

MEDICAL BENEFITS


Pre-natal, childbirth and post-natal care

Not expressly provided.
Art. 42 of the Employment Act makes allusion to free medical services provide by the employer, but it was not identified any norm that establishes this medical service as an employer’s duty. In consequence, this medical service may not be a mandatory duty for employer’s.
Employment Act 1955
Act 4 Employe’s Social Sercurity Act 1969

Financing of benefits

Not especially provided for pregnant workers neither in the Employment Act nor in the Occupational safety and Health Act.
The Employees’ Social Security Act 1969 does not mentions medical benefit or healthcare for pregnant workers.

The Employment Act mentions in Art. 40(4) Any female employee whose employer provides free medical treatment for his employees and who when she is pregnant persistently refuses or fails to submit to such medical treatment offered free by her employer as a registered medical practitioner certifies to be necessary or desirable in connection with her pregnancy, expected confinement or confinement shall, if she would otherwise be entitle to receive any maternity allowance, forfeit such allowance to the extent of seven days.

After reading this provision it could be concluded that the employer finances medical services for workers, whether mandatory or not is unknown.
Employment Act 1955
Act 4 Employe’s Social Sercurity Act 1969
Act 514 Occupational safety and health Act 1994

HEALTH PROTECTION


Arrangement of working time


Night work

Except in accordance with regulations made under this Act or any exemption granted under the provision to this subsection no employer shall require any female employee to work in any industrial or agricultural undertaking between the hours of ten o’clock in the evening and five o’clock in the morning nor commence work for the day without having had a period of eleven consecutive hours free from such work:
Provided that the Director General may, on application made to him in any particular case, exempt in writing any female employee or class of female employees from any restriction in this subsection, subject to any conditions he may impose.
Employment Act 1955 §34

Overtime

Not prohibited for women nor pregnant workers.
Employment Act 1955

Work on rest days

Not prohibited for women nor pregnant workers.
Employment Act 1955

Time off for medical examinations

Not provided
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

Leave in case of sickness of the child

Not provided
Employment Act 1955

Other work arrangements

BREASTFEEDING

There were not identified legal provisions neither on breastfeeding breaks nor on breastfeeding or nursing facilities.
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

Dangerous or unhealthy work

No female employee shall be employed in any underground working.
Notwithstanding or permit the employment of female employees in such circumstances or under such conditions as may be described in such order.
Employment Act 1955 §35,36

General

There are not provisions specifically on pregnant worker’s health, there are general provisions applicable to all workers.
It shall be the duty of every employer and every self-employed person to ensure, so far as is practicable, the safety, health and welfare at work of all his employees.
Act 514 Occupational safety and health Act 1994 §15.1.2.3

Risk assessment

General provisions on risk assessment for the health and safety of all workers and not for pregnant workers in particular.
Act 514 Occupational safety and health Act 1994

» Assessment of workplace risks

General provisions for the benefit of all workers and not only for the benefit of pregnant workers.
Act 514 Occupational safety and health Act 1994

» Adaptation of conditions of work

General provisions establishing a duty in the head of employers of adopting all the measures to guarantee safety and health of workers in working places. There are not provisions applicable or designed to pregnant workers.
Act 514 Occupational safety and health Act 1994
Employment Act 1955

» Transfer to another post

Not provided.
Employment Act 1955
Act 514 Occupational safety and health Act 1994

» Paid/unpaid leave

There are not provisions on paid nor unpaid leave for sickness during pregnancy and as result of the impossibility to work.
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

» Right to return

Not provided
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

Particular risks

There is only a prohibition of employing female employees to perform underground work.
In the Occupational safety and Health Act there are not specific provisions on female workers nor pregnant workers.
Employment Act 1955 35
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

» Arduous work (manual lifting, carrying, pushing or pulling of loads)

Not mentioned.
Employment Act 1955

» Work involving exposure to biological, chemical or physical agents

Not mentioned.
Employment Act 1955

» Working requiring special equilibrium

Not mentioned.
Employment Act 1955

» Work involving physical strain (prolonged periods of sitting, standing, exposure to extreme temperatures, vibration)

Not mentioned.
Employment Act 1955
Employment (Minimum rate of maternity allowance) Regulations 1976. Dated 1 January 1977.

NON-DISCRIMINATION AND EMPLOYMENT SECURITY


Anti-discrimination measures

No provisions on anti-discriminatory measures are available.
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955
Employment Act 1955

Prohibition of pregnancy testing

Not prohibited
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

Protection from discriminatory dismissal

Any employer who terminates the service of a female employee during the period she is entitled to maternity leave commits an offense:provided that for the purpose of this section, such termination shall not include termination on the grounds of closure of the employer’s business.

Restriction on dismissal of female employee after eligible period

42. (1) Where a female employee remains absent from her work after the expiration of the eligible period as a result of illness certified by a registered medical practitioner to arise out of her pregnancy and confinement and to render her unfit for her work, it shall be an offence, until her absence exceeds a period of ninety days after the expiration of the eligible period, for her employer to terminate her services or give her notice of termination of service.
2. Subject to subsection (1), where the service of a female employee is terminated with wages in lieu of notice at any time during the period of four months immediately preceding her confinement, she shall, in computing the period of her employment for the purposes of this part, be deemed to have been employed as if she had been given notice instead of wages in lieu thereof.
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955 §12 F
Employment Act 1955 §42

Burden of proof

Not provided
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955
Employment Act 1955

Guaranteed right to return to work

Not provided
Employment Act 1955
D.R 15 of 2011 Bill bernama an Act to amend the Employment Act 1955

Results generated on: 20th December 2014 at 11:25:28.
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