A female employee is entitled to maternity leave of not less than 98 consecutive days per confinement, and a married male employee to seven consecutive days of paid paternity leave. Both cover employees on a contract of service regardless of salary, subject to the First Schedule's excluded categories. Paid maternity allowance and paid paternity leave each carry their own service conditions, and a pregnant employee is protected from dismissal.
- The RM4,000 line does not touch either entitlement — it removes higher earners from overtime, rest-day, shift, public-holiday and termination benefits only.
- Leave and pay are separate questions. The 98 days is owed; the allowance turns on a 90-day service test.
- You cannot order anyone back early — that needs her application, your agreement and a doctor's certificate.
- Dismissing a pregnant employee is an offence, and the burden of proof falls on you.
- This is Peninsular Malaysia and Labuan law. Sabah and Sarawak have their own Ordinances.
Most guides stop at the two numbers. What costs employers is everything attached to them.
Who this applies to
Which employees does this cover, and does it apply in Sabah and Sarawak?
Since the Employment (Amendment) Act 2022 took effect on 1 January 2023, the First Schedule defines an employee as any person who has entered into a contract of service, so both entitlements reach private-sector employees on a contract, whatever the wage, subject to the First Schedule's excluded categories — domestic employees among them. They apply in Peninsular Malaysia and the Federal Territory of Labuan only; Sabah and Sarawak keep their own Labour Ordinances.
The Labour Department (JTKSM) confirms that wage-limit position in its FAQ on the amendments. The separate RM4,000 paragraph excludes higher earners from subsections 60(3), 60A(3), 60C(2A), 60D(3) and 60D(4) and section 60J — and nothing else. Your highest-paid finance manager gets the same 98 days as everyone else.
That territorial limit is the one the popular guides leave out: do not copy the KL leave policy across to a Kota Kinabalu or Kuching branch.
Days, timing and early return
How much maternity leave must you give, and when can it start?
The eligible period is maternity leave of not less than 98 consecutive days for each confinement. It cannot begin earlier than 30 days before the confinement, nor later than the day immediately after it. An employee may return inside the 98 days only on her own application, with your agreement and a doctor's certification.
Section 37 of the Employment Act 1955 is where the figure comes from, and JTKSM explains it: 98 matches the International Labour Organization's Maternity Protection Convention, 2000 (No. 183), which sets a floor of 14 weeks. The Act's own word is consecutive, so rest days and public holidays fall inside the 98 rather than extending it.
| Maternity leave | Paternity leave | |
|---|---|---|
| Length | Not less than 98 consecutive days | 7 consecutive days |
| Who | Every female employee | Married male employees |
| Service test | 90 days within the 9 months before confinement, and employed at any time in the 4 months before it — gates the allowance, not the leave | Twelve months with the same employer, immediately before the leave — gates the entitlement itself |
| Cap | No allowance once she has 5 or more surviving children | 5 confinements, irrespective of the number of spouses |
| Notice owed to you | Within the 60 days before expected confinement | 30 days before expected confinement, or as early as possible after the birth |
A doctor appointed by you may require the leave to begin within the 14 days before the expected date if advanced pregnancy prevents her working satisfactorily.
What you owe, and what she owes you
Who qualifies for paid maternity allowance, and what notice must she give?
Two service conditions, on top of the five-child bar: she must have been employed by you for periods amounting in the aggregate to not less than 90 days during the nine months immediately before her confinement, and employed by you at any time in the four months immediately before her confinement. Separately, section 40 requires her to notify you within the 60 days before her expected confinement.
Neither test touches the leave itself: a new joiner who gives birth four months in may fail the 90-day test and still take her 98 days, unpaid. What they gate is the allowance — her ordinary rate of pay for one day for each day of the eligible period, or the rate the Minister prescribes, whichever is greater. A monthly-rated employee who keeps drawing her wages without abatement is deemed to have received it, which is why this usually shows up as a payroll continuation. Notice runs both ways:
- Her section 40 notice must say when the leave will start. Beginning without notifying can suspend payment of the allowance until she does.
- If she is leaving your employment knowing she will be confined within four months of her last day, she must tell you before she goes, or she forfeits the allowance from you.
Termination during and after
Can you dismiss a pregnant employee in Malaysia?
Only on three grounds: wilful breach of a condition of the contract, misconduct, or closure of the business. Anything else is an offence under section 41A. If you do terminate, the law puts the burden of proving the reason was not the pregnancy squarely on you.
“it shall be an offence for her employer to terminate her services or give her notice of termination of service”
Employment Act 1955 (Act 265), section 41A(1)
That reversed burden changes how you defend: not with a poor appraisal, but with a documented process — which for misconduct means a properly run domestic inquiry, not a conversation. Protection also outlasts the leave: where she remains absent after the eligible period on a doctor's certificate that the illness arises from her pregnancy and confinement, terminating her is an offence for a further 90 days, whatever your notice period says. Nor can you contract out: any condition by which she relinquishes a Part IX right is void, so a clause capping maternity leave at 60 days in your offer letter is unenforceable.
The seven-day entitlement
How does the seven-day paternity leave work?
Section 60FA gives a married male employee seven consecutive days of paid paternity leave at his ordinary rate of pay for each confinement, capped at five confinements irrespective of the number of spouses. He must have twelve months' service with the same employer immediately before the leave, and that twelve months gates the entitlement itself: below it there is no paternity leave to give, paid or unpaid.
The seven days run continuously from the date of confinement and include rest days and public holidays — you cannot make the leave cheaper by timing the cover. And service completed before 1 January 2023 counts toward the twelve months, so a man a year into the job by then qualified immediately.
The situations that reach HR
Which edge cases catch employers out?
- Twins or more are one confinement. JTKSM answers the quintuplet case directly: one birth, one entitlement.
- The five-confinement cap follows the man, not the job. A new hire who has already used five is not entitled again with you.
- A loss after 22 weeks is a confinement. The Act defines confinement as parturition after at least twenty-two weeks, so paternity leave is still due if the other conditions are met.
- Domestic employees sit outside both Part IX and section 60FA. The First Schedule row excludes maternity leave and allowance as well as paternity leave.
Whether an experienced employee comes back after her 98 days is decided by how the months around them are handled, and a sensible flexible working arrangement on her return is usually cheaper than a replacement search. Maternity and paternity leave are only part of the statutory picture, and our guide to annual, sick and hospitalisation leave covers the entitlements that sit alongside them.
Want your HR and payroll team trained on the Employment Act and leave entitlements? Carriera Academy runs claimable Employment Act, HR and payroll training funded from your levy — see how in our HRD Corp claim guide.
Still have questions?
Maternity and paternity leave — employer FAQ
How many days of maternity leave is an employee entitled to in Malaysia?
Does maternity leave apply to employees earning more than RM4,000 a month?
Can an employer ask an employee to come back early from maternity leave?
Who qualifies for the seven days of paid paternity leave?
Does this apply in Sabah and Sarawak?
Does Carriera give legal advice on maternity and paternity leave?
Sources: the 98-day eligible period, the allowance conditions and rate, the monthly-rated deeming rule, five-children rule, start window, early-return provision, the section 40 notice rules, termination protection, the further 90 days, the void-condition rule, section 60FA, the First Schedule exclusions and the definition of confinement, all from the Employment Act 1955 (Act 265), 2023 reprint; the commencement date, territorial scope, ILO Convention 183 rationale, early-return rule and the multiple-birth, new-employer and 22-week answers per the JTKSM FAQ. Verified 19 August 2026. General information for employers, not legal advice.
Getting a leave policy right, or covering someone who is away?
Tell Steph what you are dealing with. Carriera Academy trains HR and payroll teams on the Employment Act (HRD Corp-claimable), and our recruiters place permanent staff when cover turns into a hire.
WhatsApp Carriera →