According to COVIDNOW statistics, as at the beginning of October 2021, more than 60% of Malaysians have been fully vaccinated.[1] Government has also eased Covid-19 restrictions allowing full working capacity if at least 80% of workers are fully vaccinated for states under Phase 2 and 3.[2] A commonly asked question is whether employers can force employees to take the Covid-19 vaccine in order to return to normal business operation.
The Human Resources Minister Datuk Seri M. Saravanan held that although there is no specific legislation on Covid-19 vaccinations yet, but the Occupational Safety and Health Act 1994 imposes duty on employers to regulate safety and health policies to ensure safety at workplace and hence employers have a right to require their employees to take the Covid-19 vaccine to prevent the spread of virus in workplace, in response to statement made by Malaysian Association for Occupational Safety and Health president, Dr Shawaludin Husin, that employers have no right to force employees to take the Covid-19 vaccine.[3] Employers would generally be able to make it compulsory for employees to take the Covid-19 vaccines if it is a government-imposed requirement. The Government has recently made vaccination mandatory for all federal civil servants, and those who refused, unless on medical exemptions, would be subjected to disciplinary action.[4]
Due to the fact that there are currently no laws or reported cases about the legality of mandatory vaccination policies in Malaysia, employers can only persuade employees to be vaccinated due to the nature and scope of their work. Therefore, consent by employees is needed when adding term mandating vaccination as it would be unfavourable to existing unvaccinated employees because this would be seen as an additional term to their employment contract which was not agreed upon when joining the company. Written consent by an employee is advised. However, employers can make it a pre-requisite term in the contract prior to a new employee joining the company as it would be similar to the requirement of fulfilling certain criteria prior to joining. Employee has the freedom of rejecting vaccination on grounds such as existing medical condition, health reasons and/or religious beliefs etc., but if there are express provisions mandating vaccination or the nature of the employee’s job so requires, e.g. frontliners or job scope requires close or physical contact, then it would not be so much of a choice.
Disciplinary action against an employee who refuses vaccination would be possible depending on the nature of employment. If the employee works in close proximity with high-risk individuals or the status of being unvaccinated would render the employee to breach his/her duty and that the business would not be allowed to operate or has caused loss to the business, disciplinary action might be taken. There is no law prohibiting employers to implement mandatory vaccination policy, but methods of how employers deal with breaches of policy may be evaluated by the courts. A balance must be struck between protecting, maintaining safety in the workplace and the exercising of disciplinary action.
Disciplinary action and termination should always be the last resort. Employers should always try to persuade or communicate with the employee on the grounds of refusal and to explain the importance of vaccination. Employers can also make necessary work arrangements such as changing the role of the employee to minimise or avoid contact with customers if the employee is not able to receive vaccination on certain grounds, e.g. medical condition. Termination of employment will only be justifiable if the law does not allow for unvaccinated employees to perform the job or service which is being employed for. The employee can make a complaint against the dismissal but it would be left for the court to decide if the dismissal was just and properly made.
However, the employer is obliged and has a non-negotiable duty to provide a safe and conducive work environment under the Occupational Safety and Health Act 1994.[5] Employers have the duty to prevent potential transmission of the disease and take reasonable steps to minimise the risk. This can be done by drafting internal Covid-19 vaccination policy to curb the spread of disease in workplace and/or mandating strict SOPs such as providing temperature checks, sanitizing machines, implementing periodic Covid-19 testing, compulsory use of face masks at all time, maintaining social distance and good ventilation system in the office.
Some workplaces would be justifiable and reasonable to impose policy mandating vaccinations, such as industries providing healthcare, beauty and wellness services, F&B, construction or hospitality industry or mortuary workers etc.. If the nature and scope of work requires physical contact or is considered high-risk, internal Covid-19 vaccination policy will be needed to cover reasons and manner in which the vaccination requirement will be enforced. Once this is devised, consent of employees needs to be obtained and documented. If an employee is unable to receive vaccine on certain grounds, the employer is obliged to make an assessment on how the refusal affects its business and make adjustments such as implementing physical distancing in all communal work areas for unvaccinated or high-risk employees or practise stricter SOPs.
Employers have to take a proactive role in encouraging employees to get vaccinated and this could be done by first educating the employee on issues like resistance to vaccines or lack of information or misinformation about vaccines. Employers can allow paid leave for employees to attend their vaccination appointments and also paid sick leave allowance if they feel unwell afterwards. By making it a prerequisite term in the employment contract or internal policy of the company would also encourage potential candidates to opt for vaccination.
With the recent spike in Covid-19 cases, vaccination would appear as the only cure and route to have our lives return back to normal. It is our duty, regardless as an employer or employee, to act reasonably so that we could protect the community from the spread of the disease.
[2] Gardaworld, “Malaysia: Officials to ease Covid-19 restrictions for Kedah, Klang Valley and Melaka from Oct 1” 30 Sept 2021
[3] Zahratulhayat Mat Arif, New Straits Time “Employers have right to insist staff vaccinate against Covid-19”, 3 Sept 2021
[4] Ram Anand, The Straits Times “Malaysia makes Covid-19 vaccinations compulsory for federal civil servants ahead of Oct reopening” 30 Sept 2021
[5] Section 4 of the Occupational Safety and Health Act 1994
Authored by Kevin Wu, Loh Yi Qing and Tan Yi Xuan
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