New Amendments in force for Malaysian Employees with effect from 1 January 2023 on Maternity Leave and Paternity Leave
Lets start with the Maternity and Paternity Leave first
What is maternity and/or paternity leave?
Maternity leave is a type of leave that pregnant mothers typically take shortly before and after giving birth while paternity leave applies to fathers to their birthing spouse.
The purpose of maternity leave is to give birthing mothers adequate time to plan for themselves and be with their babies including recovery and bonding with their babies before returning to work. During the period of leave, the employer has a legal obligation to keep the employee’s job.
The purpose of paternity leave is to give birthing fathers time to support their spouse and the babies.
What does the Labour law say about maternity and/or paternity leave?
Mothers and Fathers who become parents on or after 1 January 2023 will benefit from the expanded maternity and paternity leave provisions. Fathers who become parents are now also included.
The duration of paid maternity leave will now be extended to 98 days (equivalent to 14 weeks) which is consistent with many other countries, up from 60 days previously. In addition, female employees cannot be terminated from employment during maternity leave.
In the event, they are unable to return after their leave due to medical complications that arose from their pregnancy or childbirth, female employees cannot be terminated. This provision does not extend to paternity leave however.
Paternity leave also applies only to married men. Previously, there were no provisions for paternity leave in the Employment Act and new fathers will need to apply for paid and/or unpaid leave instead. This has now been provided where new fathers in Malaysia will be entitled to 7 days of paternity leave.
Take note however that the new maternity and paternity provisions are consecutive, which means they include public holidays and weekends. It is not clear when paternity leave should begin meaning that employers are likely free to decide when fathers may take paternity leave depending on their policy.
Paid Maternity Leave is only applicable for the first five pregnancies for woman meaning that a female employee can still get maternity leave days off, but it’s not paid time off for the sixth pregnancies onward.
Similarly, Paid Paternity Leave is also limited for the first five babies irrespective of the number of spouses.
What must Employees and Employers be aware off and do about maternity and/or paternity leave?
Employers must note that the Employment Act amendments will override all employment contract which do not provide for paternity leave and/or 60 days maternity leave. Thus an addendum must be provided to be in compliance with the newly amended law.
Employees, if your contract provides for 60 days and is not updated, it means that employees will automatically be entitled to 98 day regardless of what is stated in the Letter of Employment. Kindly refer your Employer to the amended Employment Act accordingly.
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