Maternity Leave

Related Legislation:

Article 10 and 36 of the Employment and Industrial Relations Act, 2002, Chapter 452 of the Laws of Malta

L.N. 439 of 2003, as amended by Legal Notices 3 of 2004 and 431 of 2007, Protection of Maternity (Employment) Regulations, 2003

L.N. 225 of 2003, Parental Leave Entitlement Regulations, 2003 

1. What is the duration of maternity leave?

With effect from 1st January 2012 an employee who is either already on maternity leave or who will give birth during 2012 has the option of extending her maternity leave entitlement if she notifies her employer. This uninterrupted period shall increase from 14 to 16 weeks as from 1st January 2012 and to 18 weeks as from 1st January 2013 onwards.

2. Are all employees eligible to maternity leave?

All full time and part time employees are entitled to maternity leave.

3. Is a female employee who has just adopted a child entitled to maternity leave?

Neither maternity leave nor Birth Leave applies in the case of adoption since it refers to the birth of a child. Nevertheless the employee shall be entitled to parental leave which is unpaid leave.

4. Are employees on definite period contracts entitled to maternity leave?

An employee on a fixed term contract shall have the same rights as a full time employee for the duration of the fixed term contract.

5. Are employees on probation entitled to maternity leave?

Yes, female employees on probation are also entitled to maternity leave. The probationary period will be suspended the moment that the employee goes out on maternity leave and continues running upon her return to work.  

6. How can maternity leave be distributed before and after birth?

1. Six weeks of the maternity leave are to be taken immediately after the date of confinement. This is compulsory;
2. Four weeks are to be availed of immediately before the expected date of confinement (unless agreed otherwise with the employer);
3. The remaining balance is to be taken in whole or in part immediately before or after the above periods.

7. Can an employer oblige an employee to go out on maternity leave?

The Employer is obliged to send the employee on maternity leave as provided by legislation (refer to question 5).

8. What are the conditions for taking special maternity leave during pregnancy or after having given birth or during breastfeeding?

When a risk assessment has indicated that a risk exists to the health/safety of the employee and/or her baby, in her present work, the employer is to provide an alternative post. If such alternative post is not possible, the employee is entitled to ‘special maternity leave’. During this ‘special maternity leave’ the employer is to pay the employee a special allowance equivalent to the rate of sickness benefit in terms of the Social Security Act.

9. (a) Is the employer obliged to offer alternative employment if the job presents a danger to the employee?

If a risk assessment has revealed a risk to the safety/health of the employee and/or her baby, the employer shall offer an alternative job or adjust the hours of work in order to eliminate the risk.

(b) What if the employee refuses a suitable alternative job?

If the employee, without justification, refuses to perform an alternative job which does not represent a hazard to her health and safety, she will not be entitled to payment mentioned in Question 7 above.

(c) What if there is no alternative job available?

If the employer shows to the satisfaction of the OHSA, that he is unable to offer alternative employment, then the employer shall grant the employee ‘special maternity leave’ as stipulated by legislation (refer to question 7).

10. How much notice has to be given to take maternity leave?

A pregnant employee shall notify the employer in writing of the date she intends to avail herself of the maternity leave at least four weeks before the maternity leave begins.

11. Does vacation leave accumulate during periods of maternity leave?

Vacation leave accrues during the whole period of maternity leave whether paid or unpaid.

12. If the maternity leave overlaps a shutdown period, is the foregone leave added to the leave entitlement?

Yes, the leave is added.

13. Can an employee opt to remain in her job even if it might present a health hazard to the pregnancy? Can the employer be held liable? Who can determine whether a job presents a health hazard?

Only through a risk assessment can a particular job be established as posing a safety/health hazard. The ultimate authority in such cases is the OHSA. The employer can engage an independent assessor to determine the suitability of a job, or whether adjustments have to be implemented.

An employer cannot and should not allow an employee to remain in her job if a risk assessment has established that the particular job poses a risk to mother and/or baby.
An employer can be held liable only if an employee is kept in her work, after a risk assessment has established that a safety/health risk exists.

14. If a pregnant employee, who is on a definite period contract, cannot continue performing her work for the duration of the pregnancy what are the options available to the employer?

The conditions explained in question 7 of this chapter also apply to employees on definite period contracts.

It should be noted that the employer may at any time during the definite period contract terminate employment and pay half the wages/salary that would have been payable for the unexpired period.

15. If the employee gives notice of resignation before six months after returning to work, how can the employer obtain the refund for the payments issued during maternity leave?

An employee, on a contract for an indefinite duration, who has availed herself of maternity leave is obliged to work for a continuous period of six months upon her return to work. The employer is entitled to request payment from the employee for refund of payments made to her during the maternity leave if the employee does not work for a continuous period of six months. If the employee refuses to pay, the employer may take legal action against the employee.

16. Is post natal depression considered as sick leave?

An employee on post natal depression is considered to be sick and is therefore entitled to sick leave as stipulated by legislation or a collective agreement or contract of employment. The employer however has the right to refer the employee to a specialist for a second opinion.

17. Can the period of maternity leave be immediately followed by a request for parental leave?

An employee may request parental leave immediately following the period of maternity leave. However an employer may postpone the timing of the parental leave in accordance with the provisions of clause 7 of L.N. 225 of 2003 (Parental Leave).

18. If an employee takes parental leave immediately following the maternity leave does this exempt her, partly or wholly, from working for a continuous period of six months upon her return to work?

The employee would still have to work for a continuous period of six months upon her return to work even if she would have taken parental leave following the maternity leave.

19. Are employees who have given birth eligible for birth leave over and above maternity leave?

No, an employee is not entitled to birth leave in addition to maternity leave. Birth leave is only applicable to the father on the birth of a child.

20. Can an employee ask for payment in lieu of part of the maternity leave? Can the employer accept such a request?

Employers should not accept any request for payment in lieu of maternity leave. Besides being against the law the employer would be exposing himself to damages in case of any mishap.

21. Are public holidays falling during periods of maternity leave added to the leave entitlement?

Yes.  Employees are entitled to both maternity leave and public holidays falling between Monday and Friday.

22. Can a pregnant employee continue to work on night shift?

Unless an employee notifies the employer by means of a medical certificate that she should not perform night duties, or where a risk assessment establishes that night work is detrimental to the safety/health of the mother or baby, a pregnant employee may continue to work night shift.

Employers are however advised to be extremely cautious and should ideally carry out a risk assessment themselves to ensure that they will not be liable to any damages in future. Employers are reminded that if any alternative work is given during pregnancy, the employee’s wages shall not be less favourable than those stipulated in the contract of employment.

23. Is a pregnant employee obliged to work overtime?

Pregnant employees shall not be obliged to work overtime during pregnancy and for a period of 12 months from the birth of the child.