Here at vStaff we get the best in the business to share with you the latest tips and news in our local business environment. Today we’ll be going over Covid-19 vaccination policies in a Malaysian context
As Malaysia is swept up in the global pandemic and reels back from the blows the disease has dished out on our nation, our businesses need to survive and adapt to the new normal. So how should our employment law and policies adapt and change to suit the needs of this changing world?
Should employers compel employees to receive vaccinations for life-threatening diseases? If yes, are there any exceptions or special circumstances that an employer must consider?
Currently there is no law mandating the vaccination in Malaysia. Given that this is outside the sphere of the employment relationship, our view is that the employer cannot compel the requirement of the vaccination unless there was such a condition or term of employment to this effect in the contract of employment which is unlikely.
However, for the health and safety of everyone in the workplace, it can be highly recommended for employees to receive protection in order to mitigate the risk of serious illness and death to allow them to continue to carry out their duties in a safe and effective manner.
Can employees refuse to be vaccinated – how does this balance against the freedom of choice and the obligation to provide a safe work environment?
Yes, employees can potentially refuse to be vaccinated save where there is express provision mandating the vaccination or the nature of employment necessitates such measures. The refusal may stem from concerns with inter alia the efficacy of the vaccine, side effects for those with existing medical conditions or on account of their religious beliefs. The right of autonomy and fundamental liberties in turn need to be balanced against the obligation to provide a safe working environment. This necessitates the employer to ensure that it has in place reasonable safety precautions implemented to mitigate the risk of potential risk of transmission – practicing social distancing within the office premises, temperature checks, compulsory use of face masks, frequent sanitization to discharge the obligation vested in the employer.
In the event of a refusal can an employee be dismissed for refusal to comply with such a vaccination policy – will that constitute just cause for termination?
The refusal of the vaccination would not in my view amount to just cause for termination. While arguable that the cause for termination will be intertwined with the nature of employment exercised for instance those having frequent and close contact with individuals for instance those in the frontline of medical care, it will be an extreme measure to terminate employment for refusal to undertake the vaccination.
What benefits or accommodations do employers have to make for vaccinated employees?
There have been no legal requirements imposed as of the present day. This may change in time. For those that have been vaccinated, there have been no specific requirements imposed. The obligations to maintain social distancing, sanitisation, and wearing of masks requirements at the workplace which are already in existence in organizations continue to remain.
How should employment contracts or letters of offer be modified to suit this new requirement should it be necessary for the workplace?
Including a clause like this can work:
In order to provide our workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm, a condition of employment is that you have received or will receive vaccinations for life-threatening diseases e.g. Covid-19, while you are employed at our organisation. You may also be required to perform periodical health checks or tests during the course of your employment to ensure you are of sound health. If you do not consent to this, then you may be deemed ineligible for this employment offer.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
If there are underlying health reasons this may form a basis however if an employer has taken all reasonable safety precautions this would not in my view amount to a justifiable reason for such refusal more so where the employee has been vaccinated and thus should not have concerns of contracting the virus.
Are employers required to provide paid leave for employees to get vaccinated in Malaysia?
Presently there is no such statutory requirement however this mechanism/ requirement is being contemplated by the government. Employees in the private sector who have appointments for such vaccination would in most circumstances be granted paid leave over and above the annual leave however this is left to the discretion of the employer in the absence of any statutory requirement to do so.
We all wish to continue to educate and raise awareness about the latest HR and IR issues to raise the local business standards and intelligence when it comes to building a robust and successful workforce, so stay tuned and drop us a line at vstaff.my to find out more!