Becoming a mother is one of life’s most meaningful experiences — but it also raises many questions about what happens at work. Can you take time off? Will you still be paid? What if you resign before your due date, or your employer doesn’t know you’re expecting?

Malaysia’s Employment Act 1955 provides clear (though sometimes misunderstood) rules on maternity leave and maternity allowance. Below, we explain what every employee and employer should know — from eligibility and payment conditions to practical workplace issues like when to disclose a pregnancy and how to avoid disputes.

  1. The Right to Maternity Leave

    Under Section 37(1) of the Employment Act 1955, every female employee is entitled to 98 consecutive days of maternity leave for each confinement.

    • What counts as “confinement”

      “Confinement” is legally defined as childbirth that occurs at 22 weeks of pregnancy or more, regardless of whether the child is born alive or stillborn. This means even if the baby is lost after 22 weeks, the employee is still entitled to maternity leave and (if eligible) maternity allowance.

      The only exception is where the employee already has five or more surviving children; in such cases, she is no longer entitled to maternity leave or allowance under the Act.

    • No minimum service required

      Importantly, there is no minimum period of employment to qualify for maternity leave. Once you fall under the coverage of the Employment Act and become pregnant, the right to 98 days’ maternity leave applies automatically.

  2. The Right to Maternity Allowance (Pay During Leave)

    Maternity allowance — the pay an employee receives during maternity leave — is governed separately under Section 37(2).

    To qualify, a female employee must:

    1. Have been employed at any time in the 4 months immediately before confinement, and
    2. Have worked at least 90 days in the 9 months immediately before confinement.

    If both conditions are met, she will receive her normal wages for the full 98-day maternity leave period.

    If she does not meet these conditions, she is still entitled to maternity leave (the time off), but the employer is not required to pay the allowance.

  3. Making Sense of Section 37(2)

    Section 37(2) can sound technical, but the idea is simple. Think of it as a “90 days + 1 day” rule: -

    1. You must have worked for an employer for at least 90 days in the 9 months before your baby is born; and
    2. You must have worked for that same employer for at least one day in the 4 months before your baby is born.

    If either of these conditions are not met, that employer doesn’t have to pay maternity allowance (though you would still be entitled to maternity leave if you are employed at the time).

    Let’s look at some realistic examples to put things into perspective, assuming Lily’s baby is due on 6th December 2025. That means: -

    • The 9-month window runs from 6th March 2025 → 5th December 2025, and
    • The 4-month window runs from 6th August 2025 → 5th December 2025.
    Scenario Facts Does she qualify for maternity allowance? Reasoning
    Scenario 1: Still with the same employer Lily has been with Company A since 2022 and will still be working there in December 2025. Yes She’s worked well over 90 days in the 9-month window. She’s still employed in the 4 months before 6th December.
    Scenario 2: Changed jobs mid-year Lily worked for Company A from 3rd March 2025 until 31st July 2025 (150 days), then joined Company B on 1st August 2025 and worked till her due date. Yes, but only from Company B. Company A: worked >90 days but not employed in the 4-month window. Company B: 1 Aug–5 Dec 2025 = 126 days; employed in both windows.
    Scenario 3: Left job too early Lily left her job on 31st July 2025 and didn’t take another job. No Worked >90 days in the 9 months but did not work even one day within the 4-month window.
    Scenario 4: Recently hired Lily joined her company on 1st October 2025. No Only ~66 days worked by 6th December 2025.
    Scenario 5: Resigned but still covered Employed since Jan 2025; gave one-month notice on 15th Oct 2025; last day 14th Nov 2025. Due 6th Dec 2025. Yes Worked >90 days in 9 months and was employed in the 4-month window.
  4. Maternity Leave vs. Maternity Allowance at a Glance

    Aspect Maternity Leave Maternity Allowance
    Legal Basis Section 37(1), EA 1955 Section 37(2), EA 1955
    What It Covers 98 days’ job-protected leave Wages during that leave
    Eligibility Any employee giving birth at ≥22 weeks Worked ≥90 days in the 9 months and employed within 4 months before confinement
    Automatic? Yes No — subject to service requirements
    Example New hire (2 months) → 98 days’ leave Same new hire → no allowance payable

    In short: Maternity leave means time off; maternity allowance means getting paid during that time off.

  5. Notice Requirements: When to Inform Your Employer

    Under Section 40(2) of the Employment Act, a pregnant employee must notify her employer within 60 days before her expected confinement date and state when she intends to start her maternity leave.

    Failing to give this notice does not erase the right to maternity leave itself, but it can affect entitlement to maternity allowance.

    While this is the legal minimum, in reality, it’s often better to inform your employer earlier once you feel ready and comfortable. Early notice allows your employer to make work arrangements, plan for temporary coverage, and — most importantly — activates your legal protection.

    • Section 41A – Protection From Dismissal Once You’ve Informed Your Employer

      Since 2022, Section 41A of the Employment Act has made it unlawful for an employer to dismiss or issue a notice of termination to a pregnant employee because she is pregnant, has given birth, or intends to take maternity leave.

      An employer can only terminate a pregnant employee for the following legitimate reasons: -

      1. Wilful breach of a condition of the employee’s contract;
      2. Misconduct (after due inquiry); or
      3. Closure of the employer’s business.

      This means that once you have notified your employer of your pregnancy or intention to take maternity leave, the law presumes any termination to be pregnancy-related — and the burden shifts to the employer to prove that it was for a valid reason unrelated to your pregnancy.

    • Practical Advice – Why Early Disclosure Protects You

      Pregnant women actually hold strong legal protection under Malaysian law — but this protection only starts after your employer has been informed of your pregnancy.

      If you are dismissed after disclosing your pregnancy, the employer must be able to show that it was due to misconduct, company closure, or a contractual breach — not because you’re pregnant.

      In other words, once your employer is aware of your pregnancy, you are protected. This is why, from a practical standpoint, informing your employer early is not a weakness but is in fact a shield.

      Pregnant employees sometimes fear that telling their employer about their pregnancy will put their job at risk — but in truth, the opposite is true under Malaysian law. Once you disclose your pregnancy, you are protected by statute, and your employer carries the burden of proof for any subsequent termination.

      Early transparency protects you legally, safeguards your health at work, and allows your employer to plan ahead responsibly.

  6. When Does Maternity Leave Usually Start?

    The law allows a mother-to-be to start her leave any time as she wishes, provided it begins no earlier than 30 days before her expected confinement, and continues until she completes the 98-day period.

    Some employees work as long as possible before their due date to maximise postnatal recovery time, while others take leave earlier for health or logistical reasons. The timing is flexible as long as notice is properly given.

  7. What Happens if You Resign Before or During Maternity Leave?

    This is a frequent point of confusion. Let’s break this down simply: -

    1. Resigning before maternity leave (i.e. before your leave begins / before delivery)

      • You may still be entitled to maternity allowance from your employer, if you satisfy the Section 37(2) conditions (i.e. worked ≥ 90 days in the prior 9 months with your employer, and employed by the same employer at some point in the 4 months before confinement).
      • The fact that you resigned doesn’t automatically disqualify you (unless your resignation means you no longer meet the 4-month employment requirement, etc.).
      • However, once your employment ends, you obviously cannot take maternity leave under that employer. The right to leave ends with the contract, but the right to payment may still exist based on prior service.

    2. What happens if your notice period overlaps with your confinement?

      If you’ve already met the requirements under Section 37(2): -

      1. Your maternity allowance entitlement is already vested.
      2. You remain entitled to be paid for the 98 days’ maternity allowance, even if your employment technically ends during that period.
      3. The maternity allowance and notice period can run concurrently — you do not lose your allowance simply because the contract ends mid-leave.

      This interpretation is consistent with the protective purpose of maternity legislation and is supported by the principle that accrued benefits cannot be forfeited after entitlement arises.

    3. Resigning during maternity leave

      • Once your maternity leave has started, your right to maternity allowance is “vested” — you cannot be stripped of the allowance because you resign while on leave.
      • The employer must still pay you for the full 98 days (if you qualified).
      • As explained above, your notice period may run concurrently with the leave, depending on the terms of your contract.
  8. Miscarriages and Stillbirths — What’s the Difference Legally?

    The distinction between miscarriage and confinement is critical:

    • Confinement (≥22 weeks) → Entitled to maternity leave and (if eligible) maternity allowance.
    • Miscarriage (<22 weeks) → Not covered under maternity provisions; ordinary sick leave applies.

    The classification depends on medical evidence. If a doctor certifies that the pregnancy ended before 22 weeks, the event is treated as a miscarriage, even if the employee was visibly pregnant.

  9. Pregnancy and Job Applications — What You Should Know

    • Do you have to tell your employer you’re pregnant when applying for a job?

      No. There is no legal duty to disclose pregnancy during a job interview or application. An employer cannot lawfully reject or revoke an offer because a candidate is pregnant.

    • Can employers ask whether you're pregnant (or planning to be)?

      Malaysia does not currently have strong express statutory prohibitions against asking about pregnancy in interviews. (There is no “Pregnancy Discrimination Act” like in some countries.)

      However, such questions can strongly suggest discriminatory intent, and in constitutional or public sector contexts, discrimination on the basis of pregnancy may violate equality rights (e.g. under Article 8 of the Federal Constitution).

      Many commentators advise that asking about pregnancy or intent to have children is improper and may pose legal risk or be considered unfair.

      Therefore, instead of directly asking about a prospective employee’s pregnancy status or plans, employers should stick to job-relevant questions — e.g. “Can you meet these physical demands?” rather than “Are you pregnant or planning to be?”.

    • Can you lie if asked directly?

      You are not legally obliged to answer, but it’s best not to lie, because misrepresentations in job applications can be grounds for termination later (if the misrepresentation is material).

      A safer stance would be something along the lines of telling your prospective employer that you would prefer not to discuss personal medical details at this stage, and if they have specific job-requirements (e.g. physical capacity), you’d be happy to discuss your ability to meet them.

      This approach balances your right to privacy and avoids triggering accusations of dishonesty.

    • Can employers require pregnancy tests before hiring?

      Requiring a pregnancy test as a condition of employment is strongly discouraged and may be seen as discriminatory. Employers should limit pre-employment medical checks to assessing fitness for work, not pregnancy status. However, it is possible that the medical checks may reveal a woman’s pregnancy status.

    • Risks on both sides

      If you don’t disclose a pregnancy, your employer may assign you work unsuitable for pregnant women (e.g. heavy lifting), which could risk your health or breach workplace safety.

      Therefore, it’s important to note that transparent communication (once you are comfortable) can help mitigate misunderstandings and build trust between yourself and your employer.

  10. Practical Guidance for Employees

    • Give notice in writing (email or formal letter), attaching a medical confirmation of your pregnancy.
    • Keep a copy or acknowledgement so you can prove when your employer was informed — this date is key if disputes arise later.
    • If your role involves physical, hazardous, or night work, early disclosure allows your employer to adjust your duties under occupational safety guidelines.
    • Keep records of your employment dates and payslips — they are vital for proving eligibility for maternity allowance.
    • Notify your employer of your expected confinement in writing at least 60 days before your due date.
    • If your pregnancy ends before 22 weeks, obtain a medical certificate so that your absence can be treated as sick leave.
    • Plan your maternity leave early, and confirm it in writing to avoid disputes later.
    • In multiple-employer situations, keep evidence of each employer period, in case you need to claim pro rata or apportionment.
    • Submit your maternity leave notice and medical certificate in writing, keeping proof (email, acknowledgement) so there’s no dispute later.
  11. Practical Guidance for Employers

    • Avoid pregnancy-related questions in interviews or hiring, as they create legal risk and distrust. Train HR managers on lawful interview boundaries.
    • Avoid taking disciplinary or termination action once notified of an employee’s pregnancy, except for the three permitted reasons — and document the process carefully.
    • When adverse actions are considered (e.g. termination, demotion), ensure there is strong justifiable non-pregnancy reason and document everything.
    • Maintain clear written policies distinguishing maternity leave (time off) and maternity allowance (pay).
    • Keep accurate attendance and payroll records to assess whether employees meet the 90-day and 4-month tests.
    • Treat pregnancy-related medical information as confidential and respect employees’ privacy.
    • If you operate in manufacturing, healthcare, or physically demanding environments, consider appropriate temporary reassignment to protect pregnant employees’ health and safety.
    • If a pregnant employee requests modified duties or reduced physical tasks, evaluate in good faith (as required by occupational health, safety, and risk management).
    • Encourage early communication — supportive policies reduce misunderstandings and legal risk.
    • In short, employers should view pregnancy as a protected condition, not an operational inconvenience.
  12. Frequently Asked Questions

    1. What if my employer refuses to pay my maternity allowance?

      If an employer unlawfully withholds maternity allowance, you can file a complaint with the Labour Department (Jabatan Tenaga Kerja). Employers who breach maternity protections may also face legal penalties under Section 99A Employment Act 1955.

    2. Can my employer terminate my employment after my maternity leave?

      If you are unable to return to work after your maternity leave as a result of illness certified by a registered medical practitioner to arise out of your pregnancy and confinement and to render you unfit for work, your employer cannot terminate your employment or give you notice of termination of service until your absence exceeds a period of ninety (90) days after the expiration of the eligible period (Section 42(1)).

  13. Key Takeaways

    • Every female employee is entitled to 98 days’ maternity leave under the Employment Act 1955.
    • Maternity allowance (pay) is conditional on having worked at least 90 days in the 9 months and being employed within 4 months before confinement.
    • “Confinement” includes stillbirths and premature births from 22 weeks onwards.
    • Employees should give notice at least 60 days before confinement.
    • Employers should avoid discriminatory hiring practices and respect maternity rights.
    • Early communication and clear policies benefit both sides.
  14. Conclusion

    By understanding these rights and obligations, both employees and employers can better understand and navigate maternity-related workplace issues. If you need advice on maternity protections or other employment matters, feel free to reach out to us at 03-8084 3832, or drop us an e-mail at general@yikuan.com.my.