Malaysia - Maternity protection - 2011

10 November 2011

NORMAL

Employment Act 1955

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

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

Act 4 Employe’s Social Sercurity Act 1969

Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace, 1999

Act 514 Occupational safety and health Act 1994

Official Website of the Parliament

Official web-site of the Government

Ministry of Health

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.

There are not qualifying conditions for a female worker in order to be entitled to maternity 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.

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.

There are not provisions on extension of maternity leave in case of multiple births.

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.

Not provided.

Not provided.

Not provided.

Not provided.

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.

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.

For the period of maternity leave (60 days)

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.

The employer

Not provided.

Not provided.

Not provided

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.

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.

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.

Not prohibited for women nor pregnant workers.

Not prohibited for women nor pregnant workers.

Not provided

Not provided

BREASTFEEDING

There were not identified legal provisions neither on breastfeeding breaks nor on breastfeeding or nursing facilities.

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.

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.

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

General provisions for the benefit of all workers and not only for the benefit of pregnant workers.

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.

Not provided.

There are not provisions on paid nor unpaid leave for sickness during pregnancy and as result of the impossibility to work.

Not provided

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.

Not mentioned.

Not mentioned.

Not mentioned.

Not mentioned.

No provisions on anti-discriminatory measures are available.

Not prohibited

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.

Not provided

Not provided