?Sara Lau is an attorney with Skrine in Kuala Lumpur, Malaysia, who has been tracking the changes in Malaysia’s Employment Act 1955, including its expanded maternity and paternity leave, as part of her work. She is also having a baby this year and was hoping to benefit from the expanded provisions, which were set to go into effect on Sept. 1.
Now the effective date has been pushed back to Jan. 1, 2023, “so I’m not statutorily entitled to it,” Lau said. “But my employers have been very nice about it, and they have extended my maternity leave.”
Women and men who become parents after Jan. 1, 2023, will benefit from the expanded maternity and paternity leave provisions. Maternity leave has been expanded to all female employees in Malaysia who are under a contract of service, and fathers can now take paternity leave.
The duration of paid maternity leave is also being expanded. “The current maternity protection as it stands is 60 days, and that’s below the international standard of 14 weeks,” Lau said. If a female employee gives birth after Jan. 1, she will now be entitled to 98 days, specifically, because that equals 14 weeks, Lau noted.
Also, female employees cannot be terminated from employment during their maternity leave, nor can they be terminated if they cannot return after their leave due to medical complications that arose from their pregnancy or childbirth. However, this particular protection does not extend to paternity leave.
New Paternity Leave
“Insofar as paternity leave is concerned, this is something new in Malaysia. Previously, paternity leave was not statutorily provided,” Lau said. “So new fathers didn’t get any kind of statutory minimum requirement to be off” following the birth of their children. But this has also changed, and as of Jan. 1, fathers in Malaysia will be entitled to seven days of paternity leave.
Both the new maternity and paternity provisions are consecutive, which means they include public holidays and weekends. So a seven-day paternity leave actually consists of five working days.
There are still some ambiguities and imperfections in the law to work through. It’s unclear when paternity leave should begin, or if there is any flexibility with its commencement. “What that means is that employers are likely free to decide when fathers may take paternity leave,” Lau said.
Paternity leave also applies only to married men, though individual companies can choose to expand that.
“If you’re not married, and you have a child coming, you’re not statutorily entitled to paternity leave,” Lau said. “Employers can go above and beyond and state that we’re going to afford this to all male employees, regardless of their marital status.”
Some Limitations Remain
Maternity allowance—what a woman is paid while on maternity leave—only applies to the first five pregnancies a woman has.
“This limitation is on maternity allowance and not maternity leave,” Lau said. “What it means is that a female employee may be entitled to days off, but it’s not paid time off [after her fifth pregnancy].”
Paternity leave is also limited to the births of up to five children, which has its own complications. “It’s irrespective of the number of spouses,” Lau said. “In Malaysia, we are a Muslim-majority country and Muslims are entitled to marry up to four spouses, so this paternity leave spans potentially all spouses as long as [it is] limited to five confinements in total.”
Employers should be aware of the expanded maternity and paternity leaves and prepare for Jan. 1. “It’s important to know that regardless of whatever policies or terms and conditions of employment they have now, the law kicks into effect automatically. … If your contract provides for 60 days and is not updated, it doesn’t mean that the employee then just gets 60 days, as automatically, they’re entitled to 98 days,” Lau said. “I think the first thing that employers should look out for is to ensure that their policies are updated.”
All these provisions go into effect Jan. 1, but it doesn’t represent the end of the push for expanded maternity and paternity leave rights in Malaysia. The union IndustriALL Malaysia, whose Southeast Asia office is headquartered in Kuala Lumpur, appreciates the new policies and is also looking toward the future.
“IndustriALL Global Union, related to IndustriALL, will push against the capping of five children. I think that shouldn’t be there, so we will focus on that,” said N. Gopal Kishnam, council secretary of IndustriALL Malaysia.
Katie Nadworny is a freelance writer in Istanbul.
