Maternity and Paternity Leave in Malaysia: An Employer’s Guide

Female employees in Malaysia are entitled to 98 consecutive days of paid maternity leave, married male employees to 7 consecutive days of paid paternity leave, and section 41A of the Employment Act prohibits terminating a pregnant employee except on narrow grounds which the employer must prove.

What maternity leave and allowance must employers provide?

Since 1 January 2023, statutory maternity leave is 98 consecutive days for each confinement, paid at the employee’s ordinary rate where she has been employed in the four months before confinement and for at least 90 days in the nine months before it. The entitlement applies to all female employees regardless of salary, for up to five surviving children.

Leave may commence up to 30 days before confinement. Employers cannot contract out of these minimums, although they may offer more generous schemes.

What is the paternity leave entitlement?

Married male employees are entitled to 7 consecutive days of paid paternity leave for each confinement, up to five confinements, provided they have been employed for at least 12 months and notify the employer at least 30 days from the expected confinement or as early as possible after the birth.

Paternity leave is a statutory minimum under section 60FA of the EA; employers may not offset it against annual leave.

Can a pregnant employee be dismissed?

Section 41A of the EA prohibits terminating, or giving notice of termination to, a female employee who is pregnant or suffering from a pregnancy-related illness, except on grounds of wilful breach of contract, misconduct, or closure of business. Critically, the burden of proving that the termination was not on account of the pregnancy rests on the employer.

In practice this means any termination touching a pregnant employee — including retrenchment and probation non-confirmation — carries elevated risk and should be supported by contemporaneous documentary evidence of the genuine, non-pregnancy reason. Unfair dismissal claims under section 20 of the Industrial Relations Act 1967 remain available in addition to the statutory offence.

Key Takeaways for Employers

• Maternity leave is 98 consecutive days, paid, for all female employees up to the fifth surviving child.
• Paternity leave is 7 consecutive days, paid, for married male employees with 12 months’ service.
• Section 41A reverses the burden: the employer must prove a pregnant employee’s termination was unconnected to pregnancy.
• Permitted grounds for terminating a pregnant employee are limited to wilful breach, misconduct or business closure.
• Document performance and disciplinary issues contemporaneously — retrospective justifications rarely survive scrutiny.

Frequently Asked Questions

Is maternity leave paid in Malaysia?

Yes. An eligible employee receives her maternity allowance at the ordinary rate of pay for the full 98 days, subject to the qualifying service conditions in the Employment Act.

Can an employer retrench a pregnant employee?

Only with great caution. Retrenchment is not one of the express exceptions under section 41A unless it amounts to closure of business, and the employer bears the burden of proving the selection was unrelated to pregnancy.

Does paternity leave apply to unmarried fathers?

No. The statutory entitlement under section 60FA applies to married male employees, subject to the 12-month service and notification requirements.