The relevant provisions in the Employment Act 1955 (“EA 1955“) governing pregnancy and maternity can be found in Part IX of the EA 1955.
The following is Part IX of the EA 1955, as amended by the Employment (Amendment) Act 2021 (with the amendments in red):
PREGNANCY AND MATERNITY
Length of eligible period and entitlement to maternity allowance
37. (1) (a) Every female employee shall be entitled—
(i) to maternity leave for an eligible period in respect of each confinement; and
(ii) subject to this Part, to receive from her employer a maternity allowance to be calculated or prescribed as provided in subsection (2) in respect of the eligible period.
(aa) Where a female employee is entitled to maternity leave under subparagraph (a)(i), whether or not she is entitled to receive maternity allowance from her employer for the eligible period under paragraph (c), or whether or not she has fulfilled the conditions set out in paragraph (2)(a), she may, with the consent of her employer, commence work at any time during the eligible period if she has been certified fit to resume work by a registered medical practitioner.
(b) Subject to section 40, maternity leave shall not commence earlier than a period of thirty days immediately preceding the confinement of a female employee or later than the day immediately following her confinement:
Provided that where a medical officer or the registered medical practitioner appointed by the employer certifies that the female employee as a result of her advanced state of pregnancy is unable to perform her duties satisfactorily, the employee may be required to commence her maternity leave at any time during a period of fourteen days preceding the date of her confinement as determined in advance by the medical officer or the registered medical practitioner appointed by the employer.
(bb) Where a female employee abstains from work to commence her maternity leave on a date earlier than the period of thirty days immediately preceding her confinement, such abstention shall not be treated as maternity leave and she shall not be entitled to any maternity allowance in respect of the days during which she abstains from work in excess of the period of thirty days immediately preceding her confinement.
(c) Notwithstanding subparagraph (a)(ii), a female employee shall not be entitled to any maternity allowance if at the time of her confinement she has five or more surviving children.
(d) For the purposes of this Part—
(i) “children” means all natural children, irrespective of age; and
(ii) “eligible period” means a period of maternity leave of not less than ninety-eight consecutive days.
(2) (a) A female employee shall be entitled to receive maternity allowance for the eligible period from her employer if—
(i) she has been employed by the employer for a period of, or periods amounting in the aggregate to, not less than ninety days during the nine months immediately before her confinement; and
(ii) she has been employed by the employer at any time in the four months immediately before her confinement;
(b) A female employee who is eligible for maternity allowance under paragraph (1)(a) shall be entitled to receive from the employer for each day of the eligible period a maternity allowance at her ordinary rate of pay for one day, or at the rate prescribed by the Minister under paragraph 102(2)(c), whichever is the greater.
(c) A female employee employed on a monthly rate of pay shall be deemed to have received her maternity allowance if she continues to receive her monthly wages during her abstention from work during the eligible period without abatement in respect of the abstention.
(d) Where a female employee claims maternity allowance under this section from more than one employer, she shall not be entitled to receive a maternity allowance of an amount exceeding in the aggregate the amount which she would be entitled to receive if her claim was made against one employer only.
(3) Where there are more employers than one from whom the female employee would be entitled to claim maternity allowance in accordance with subsection (2) the employer who pays the maternity allowance shall be entitled to recover from such other employer, as a civil debt, a contribution which shall bear the same proportion to the amount of the maternity allowance paid to the female employee as the number of days on which she worked for such other employer during the period of nine months immediately preceding her confinement bears to the total number of days on which she worked during the said period:
Provided that if the female employee has failed to comply with subsection 40(1) or (2), the employer who pays the maternity allowance shall not thereby be prevented from recovering contribution calculated in accordance with this subsection.
(4) Any employer who terminates the service of a female employee during the period in which she is entitled to maternity leave commits an offence:
Provided that for the purpose of this section, such termination shall not include termination on the ground of closure of the employer’s business.
Payment of maternity allowance
38. The maternity allowance referred to in subsection 37(2) and accruing in each wage period under the contract of service of the female employee shall be paid in the same manner as if such allowance were wages earned during such wage period as provided in section 19.
Payment of allowance to nominee on death of female employee
39. If a female employee, after giving notice to her employer that she expects to be confined, commences her maternity leave and dies from any cause during the eligible period, her employer or any employer who would have been, but for the death of the female employee, liable to pay any maternity allowance shall pay to the person nominated by her under section 41 or, if there is no such person, to her legal personal representative, an allowance at the rate calculated or prescribed as provided in subsection 37(2) from the day she commenced her maternity leave to the day immediately preceding her death.
Loss of maternity allowance for failure to notify employer
40. (1) A female employee who is about to leave her employment and who knows or has reason to believe that she will be confined within four months from the date upon which she leaves shall before leaving her employment notify her employer of her pregnancy and if she fails so to do, she shall not be entitled to receive any maternity allowance from such employer.
(2) A female employee shall within a period of sixty days immediately preceding her expected confinement notify her employer of it and the date from which she intends to commence her maternity leave and if she commences such leave without so notifying her employer, the payment of maternity allowance to her may be suspended, notwithstanding section 38, until such notice is given to her employer.
(3) (Deleted by Act A1419).
(4) Any female employee whose employer provides free medical treatment for his employees and who when she is pregnant persistently refuses or fails to submit to such medical treatment offered free by her employer as a registered medical practitioner certifies to be necessary or desirable in connection with her pregnancy, expected confinement or confinement shall, if she would otherwise be entitled to receive any maternity allowance, forfeit such allowance to the extent of seven days.
(5) The want of or any defect or inaccuracy in any notice required to be given in accordance with this section shall not be a bar to the maintenance of any claim to maternity allowance unless the employer is proved to have been prejudiced by the want, defect or inaccuracy of such notice.
(6) The failure to give any such notice within the period specified in this section shall not prejudice the right of a female employee to receive any maternity allowance if it is found that the failure was occasioned by mistake or other reasonable cause:
Provided that any dispute as to whether such failure was occasioned by mistake or other reasonable cause shall be referred under section 69 to the Director General for his decision.
(7) Notice to an employer or, if there is more than one employer, to one of such employers, may be given either in writing or orally or to the foreman or other person under whose supervision the female employee was employed or to any person designated for the purpose by the employer.
Payment of allowance to nominee
41. A female employee may nominate some other person to whom the maternity allowance may be paid on her behalf and any payment of the maternity allowance made to the person so nominated shall, for the purposes of this Act, be deemed to be a payment to the female employee herself.
Restriction on termination of pregnant female employee
41A. (1) Where a female employee is pregnant or is suffering from an illness arising out of her pregnancy, it shall be an offence for her employer to terminate her services or give her notice of termination of service, except on the grounds of—
(a) wilful breach of a condition of the contract of service under subsection 13(2);
(b) misconduct under subsection 14(1); or
(c) closure of the employer’s business.
(2) Where the service of a female employee under subsection (1) is terminated, the burden of proving that such termination is not on the ground of her pregnancy or on the ground of illness arising out of her pregnancy, shall rest on the employer.
Restriction on termination of female employee after eligible period
42. (1) Where a female employee remains absent from her work after the expiration of the eligible period as a result of illness certified by a registered medical practitioner to arise out of her pregnancy and confinement and to render her unfit for her work, it shall be an offence, until her absence exceeds a period of ninety days after the expiration of the eligible period, for her employer to terminate her services or give her notice of termination of service.
(2) Subject to subsection (1), where the service of a female employee is terminated with wages in lieu of notice at any time during the period of four months immediately preceding her confinement, she shall, in computing the period of her employment for the purposes of this Part, be deemed to have been employed as if she had been given due notice instead of wages in lieu thereof.
Conditions contrary to Part void
43. Any condition in a contract of service whereby a female employee relinquishes or is deemed to relinquish any right under this Part shall be void and of no effect and the right conferred under this Part shall be deemed to be substituted for such condition.
Register of allowances paid
44. Every employer shall keep a register, in a form to be prescribed by the Minister by regulations made under this Act, of all payments made to female employees under this Part and of such other matters incidental thereto as may be prescribed by such regulations.
Application of this Part irrespective of wages of female employee 44A. Notwithstanding paragraph 1 of the First Schedule, this Part extends to every female employee who is employed under a contract of service irrespective of her wages.”
At the time of writing, only female employees covered by the scope of the Employment Act 1955 will be entitled to 98 days maternity leave.
Having said that, the Human Resources Minister has indicated that he will be issuing an order to expand the scope of the Employment Act 1955 to cover all employees regardless of wages.
In the event such a ministerial order is issued, all female employees (regardless of wages) will be entitled to 98 days maternity leave.
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