Emergency leave in Malaysia: What are employees entitled to?

In today’s fast-paced world, unforeseen situations can disrupt our lives in an instant.

Whether it’s a family emergency, a motor vehicle accident, a natural disaster, or a sudden illness, knowing what employees are entitled to when it comes to taking emergency leave is crucial.

In this blog, we will delve into the regulations surrounding emergency leave in Malaysia, clarify the entitlements employees have, and provide valuable tips on how you can better support employees on emergency leave as an employer.

What is emergency leave?

Emergency leave, also known as compassionate or special leave, is a type of leave granted to employees in situations where they face unexpected and urgent circumstances that require their immediate attention or presence. It is aimed at providing employees with the flexibility to address critical personal matters or emergencies without risking their job security or financial stability.

The specific situations that qualify for emergency leave may vary from one organisation to another and can be outlined in an employment contract or company policies. In general, the employee must have a reasonable excuse for their absence, and have informed or tried to inform the employer as soon as possible regarding the unforeseen circumstances.

Common examples of situations that may warrant emergency leave include:

• Serious illness or injury — when an employee or their immediate family member (spouse, children, parents, or siblings) faces a severe health issue that demands immediate care or hospitalisation.
• Death of a family member — in the event of the death of a close family member, employees may be granted compassionate leave to attend the funeral and cope with the grieving process.
• Natural disasters — if an employee’s home is affected by a natural disaster, such as a flood or fire, they may be entitled to emergency leave to deal with the aftermath.
• Legal obligation — for court appearances, trials, or any other legal obligations that require an employee’s presence.
• Other unforeseen emergencies — this can encompass a wide range of situations, including accidents, sudden childcare needs, or other personal crises that necessitate immediate attention.

Are Malaysian employers legally obliged to provide paid emergency leave?

There is no legal entitlement for emergency leave — it is not covered under the Employment Act 1955, nor is it compulsory for employers to provide it to employees.

However, employers, at their discretion, can provide and limit emergency leave to two or three days per year, to allow for some flexibility in accommodating the needs of employees. Any further absences beyond that can be marked as unpaid leave, or be deducted from the employee’s annual leave entitlements.

How many days of emergency leave do employees get in Malaysia?

As mentioned, Malaysia does not have a specific statutory provision that mandates a fixed number of days for emergency leave. Instead, emergency leave entitlements are typically determined by individual employment contracts or company policies, which means that the number of days of emergency leave an employee gets will vary from one employer to another.

Can an employer refuse emergency leave?

In Malaysia, whether or not an employer can refuse emergency leave depends on various factors, including the terms of the employment contract, company policies, and the specific circumstances surrounding the request for leave.

Here are some key considerations:

• Employment contract — if the employment contract specifies the terms and conditions under which emergency leave can be taken and any notice requirements, both the employer and the employee are expected to adhere to those terms.
• Company policies — employers should have company policies that provide guidelines on leave entitlements and procedures, so employees can refer to these policies to understand the process for requesting emergency leave and any other specific requirements.
• Nature of the emergency — employers can consider the nature and urgency of the emergency when deciding whether to grant leave.
• Notice and communication — employees are expected to notify their employer as soon as possible when they need emergency leave. Failure to provide timely notice can affect the employer’s decision regarding the leave request.
• Documentation — employers may require documentation or evidence of the emergency, such as a medical certificate, death certificate, or a police report, to support and justify the leave request.

It’s important for both employers and employees to communicate openly and transparently when it comes to emergency leave requests. If an employer refuses emergency leave and the employee believes it was unjust or a breach of contract, they may seek guidance from the Ministry of Human Resources or consult with legal professionals to determine their rights.

What is considered a reasonable reason for emergency leave?

There are situations in which it is considered a reasonable excuse for emergency leave, such as a car accident, the death of an immediate family member, or a sudden event like a medical emergency. However, several circumstances may not be so clear cut. It’s best for employees to inform employers as soon as possible, to gain approval and ascertain whether their reason is valid enough to warrant emergency leave.

In the case of Sandran Perumal v Nestle Manufacturing (M) Sdn Bhd [2014], the employee alleged that he was absent from work for a few days because he had to address an issue concerning his family property. However, it was eventually ruled that there was nothing which gave rise to a sudden event which was unforeseeable, and hence the employee’s reason for absence was not of an emergency nature. In addition, the employee failed to inform his direct supervisors promptly, and did not turn up for work with any accountability nor reason for his sudden absence. The employee had also been warned before for being absent and taking leave without permission. Hence, this incident was a case of repeated misconduct, further solidifying the conclusion that the dismissal was a valid one.

In essence, the main consideration the court uses in assessing such cases is whether the employee “had given sufficiently cogent reasons and information for any reasonable employer in similar circumstances to consider the same leave request to be of an emergency nature.”

In other circumstances, like CK Lee & Associates v Goh [2002], the employee was faced with a genuine medical emergency, where she had to take her sick father to the hospital on several occasions and hence was unable to report to work. The employee was able to provide documentation proof of her father’s admission to hospital, and contacted the reception clerk about the medical emergency. However, despite providing her employer with a satisfactory reason, the employer failed to properly investigate her absence and proceeded to terminate her employment. As such, the Industrial Court came to the conclusion that the dismissal was without just cause or excuse.

In any case, it is clear that unless the employee has received explicit approval from their employer, they cannot go on leave. If the employee chooses to do so regardless, the burden of proof is on the employee.

Creating an emergency leave company policy

Creating an effective emergency leave company policy is essential to ensure that employees understand their rights and responsibilities when faced with urgent and unforeseen situations.

Here are some key considerations to include when developing an emergency leave policy for your organization:

• Define the purpose and scope of the policy — to provide guidelines for employees and employers regarding emergency leave, specify who is covered by the policy (e.g full-time employees, part-time employees, contractors/freelancers, etc)
• Outline the eligibility criteria for emergency leave — specify, if any, the minimum conditions employees must meet before becoming eligible.
• Define the types of emergencies covered — provide clarity over what situations qualify for emergency leave, such as serious illnesses, family emergencies, natural disasters and legal obligations.
• Define the process employees should follow when requesting emergency leave — specify how and when employees should notify their supervisor or HR department, and include any necessary documentation requirements.
• Duration of leave — specify the maximum duration allowed for each type of emergency. Ensure that it is reasonable for the situation involved, or provide some flexibility.
• Pay and benefits — explain whether emergency leave is paid or unpaid. If it is paid, detail the rate of pay and any associated benefits. Be clear about how paid leave affects other benefits, such as accrued leave or bonuses.
• Documentation and verification — list documentation or evidence required to support a request for emergency leave, e.g medical certificates, death certificates, or legal notices. Include a provision for verification of the emergency.
• Communication and confidentiality — stress the importance of open and respectful communication between employees and supervisors. Ensure that sensitive information related to emergencies is handled confidentially.
• Return to work process — explain what happens when an employee returns to work after taking emergency leave. Ensure that employees are aware of any requirements, such as medical clearance needed, if applicable.
• Non-discrimination and retaliation — emphasise that employees should not face discrimination or retaliation for requesting or taking emergency leave in accordance with the policy.
• Review and updates — state that the policy will be periodically reviewed and updated as needed, to ensure its relevance and compliance with changing laws and company needs.
• Distribution and training — clearly communicate how the policy will be distributed to employees, and how they will be trained or informed about its contents. Make sure all employees have access to the policy.
• Contact information — provide contact information for a member of the HR team, or a designated point of contact where employees can seek clarification or assistance related to the policy.
• Acknowledgment and signature — ensure that employees acknowledge that they have read and understood the policy. Their signature will serve as evidence of their awareness and agreement.

Remember, an emergency leave policy should be flexible enough to accommodate various types of emergencies, while also being fair and consistent in its application.

How can employers support employees in using their emergency leave?

Supporting employees in using their emergency leave (when necessary) is not only a compassionate approach, but also helps maintain a positive and productive work environment. Here are several ways in which you can provide support as an employer:

1. Communicate your company policy clearly

Ensure that your employees are aware of the emergency leave policy from day one. Include it in the employee handbook, mention it during orientation sessions, and get them to sign and acknowledge it. Regularly remind employees about their rights and responsibilities regarding emergency leave.

2. Educate managers and supervisors

Train your managers and supervisors on handling emergency leave requests effectively, so they can provide timely approvals, demonstrate empathy, and provide guidance to the employee as needed.

It’s also important to encourage open communication, and foster an environment where employees feel comfortable and safe to discuss their personal emergencies or situations with their direct supervisor, or HR. They will be required to notify their supervisors as soon as they anticipate a need for emergency leave.

3. Flexible work arrangements

Wherever possible, allow for flexible work schedules or remote work arrangements to accommodate employees who may need to attend to emergencies while still trying to fulfil their work responsibilities. This helps to minimise any disruption to their team and the business, whilst still enabling them to tend to their personal issues.

4. Offer counselling and support services

Provide access to employee assistance programs (EAPs) or counselling services to help employees cope with the emotional and psychological effects of emergencies, such as grief or trauma.

Depending on the nature of the emergency, consider offering additional support, such as paid leave, extended time off, or access to company resources to help employees address their urgent needs.

5. Show compassion and empathy

Be understanding and empathetic when employees request emergency leave. Reassure them that their well-being is a top priority for the business, and that they need not worry about their job security.

It’s also crucial to respect and maintain the confidentiality of employees’ personal emergencies. Ensure that sensitive information is not disclosed to unauthorised individuals within the organisation.

Some employees may need time to transition back to work after taking emergency leave. Be open to allowing them to ease back into their responsibilities gradually if necessary.

You can also encourage employees to provide feedback on their experiences with the emergency leave process. Use this feedback to continuously improve the support provided, and refine the company’s policy if needed.

Supporting employees with emergency leave not only contributes to employee well-being, but also fosters loyalty, trust, and a positive work culture within the organisation. By demonstrating care and empathy during challenging times, you strengthen your relationship with employees and promote a healthy work-life balance.

Manage emergency leave and other leave requests with ease

With so many leave types available, it can be difficult to track or keep tabs on everyone’s leave requests and dates across the business. That’s where Employment Hero can help.

You don’t have to manually keep track of leave entitlements via spreadsheets — we’ll do it all for you. Streamline your leave management processes, reduce administrative burdens and remain statutory compliant with our all-in-one HR software.

You get a centralised leave management system where managers can approve employee leave requests instantly, and view employee leave dates in a combined calendar for easy reference. Employees also enjoy self-service functionality — they can use their desktop or mobile to submit leave requests, upload documents, receive notifications about the status of their leave requests, and more. In emergency situations, having such a seamless leave management process takes a huge burden off an employee’s shoulders.

Leave management is an integral part of creating a happy and healthy workplace. Get it right, and you’ll benefit from productive employees who feel empowered to bring their best selves to work.

For more information on other types of leave, visit the Malaysia SME BizHub or refer to our guide to HR compliance.

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Check out our other resources: 

• How does compassionate and bereavement leave work in Malaysia?
• How does sick leave & hospitalisation leave work in Malaysia?
• Employer’s guide to maternity leave in Malaysia
• Malaysia Public Holidays 2024 Cheatsheet

 

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Disclaimer: The information in this article is current as at 27th September 2023, and has been prepared by Employment Hero Pty Ltd (ABN 11 160 047 709) and its related bodies corporate (Employment Hero). The views expressed in this article are general information only, are provided in good faith to assist employers and their employees, and should not be relied on as professional employment or legal advice. Any reference to government policies, regulations, or guidance is for informational purposes only and should not be considered official government advice. The information is based on data supplied by third parties. While such data is believed to be accurate, it has not been independently verified and no warranties are given that it is complete, accurate, up to date or fit for the purpose for which it is required. Employment Hero does not accept responsibility for any inaccuracy in such data and is not liable for any loss or damages arising directly or indirectly as a result of reliance on, use of or inability to use any information provided in this article. You should undertake your own research and seek professional advice before making any decisions or relying on the information in this article.

Note: The Employment Act is not applicable to Sabah and Sarawak, as they have their own Labour Ordinances respectively: the Sabah Labour Ordinance and Sarawak Labour Ordinance.