Malaysia: Q&A - Employer COVID-19 Vaccination Policies (Updated)
*Disclaimer: Given the speed at which new laws, regulations and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*
Has vaccination been made mandatory in your jurisdiction?
No. However there are government-related directives for the government sector employees to be fully vaccinated before returning to face to face work.
Can an employer compel compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
There is no law mandating the vaccination presently. Given that this is outside the sphere of the employment relationship, my 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.
Can employers require the wearing of masks in the workplace?
Yes. This is also in line with the government’s standard operating procedures as the wearing of masks is mandatory.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
Yes, employees can potentially refuse to be vaccinated save where there is an 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 the 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.
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.
In your country, are employers required to provide paid leave for employees to get vaccinated?
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.
Contributor
Shearn Delamore & Co.
Suganthi Singam
suganthi@shearndelamore.com