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Covid-19: Clarifications and FAQs (Part 4)

25 March 2020

We had thus far issued three Alerts on several clarifications and FAQs issued by various Ministries and Government Departments in relation to the Movement Control Order relating to Covid-19 (‘MCO’) that has been implemented in Malaysia from 18 to 31 March 2020 (‘Relevant Period’). These Alerts are available here: Part 1, Part 2 and Part 3.
 
In this Alert, we have reviewed the following FAQs –
 
  • Part 1 of the FAQs issued by Kementerian Sumber Manusia (Ministry of Human Resources) on 19 March 2020 (MHR FAQs-I’);
  • Part 2 of the FAQs issued by Kementerian Sumber Manusia (Ministry of Human Resources) on 23 March 2020 (‘MHR FAQs-II’);
  • FAQs issued by Kementerian Pelancongan, Seni dan Budaya (Ministry of Tourism, Arts and Culture) on 20 March 2020 (‘MOTAC FAQs’);
  • FAQs issued by Kementerian Kesihatan Malaysia (Ministry of Health) on 20 March 2020 (‘MOH FAQs’);
  • FAQs issued by Kementerian Alam Sekitar (Ministry of Environment) on 20 March 2020 (‘MOE FAQs’);
  • FAQs issued by Kementerian Dalam Negeri (Ministry of Home Affairs) on 21 March 2020 (‘MOHA FAQs’); and
  • FAQs issued by Kementerian Kewangan Malaysia (Ministry of Finance Malaysia) on 21 March 2020 (‘MOF FAQs’).
Below is a summary of some noteworthy issues set out in the above FAQs that may be of interest to commercial enterprises and businesses.
 
MHR FAQs-I
 
FAQ No. 1 states that an employer who requires employees to attend work to perform essential services during the Relevant Period is required to take the following measures-
 
  1. Reduce the number of employees to a minimum or at least to 50% of the current number;
  1. Restrict the movement of the employees involved;
  1. Prepare body temperature monitoring equipment and take body temperature readings of employees every morning;
  1. The employees must comply with the Covid-19 prevention procedures prescribed by the MOH from time to time;
  1. Make available hand sanitisers;
  1. Perform the necessary sanitisation and cleaning process; and
  1. Ensure that the best practice guidelines on social distancing are in place and implemented.
FAQ No. 2 states that the employee is required to pay wages in full for the Relevant Period. Employees who are paid wages on a daily rate must be paid at the rate agreed between the employer and the employee as stipulated in the offer letter/ service contract/ latest pay increment letter. For employees whose wages are not fixed, their daily wages should not be lower than the minimum wage rate prescribed under the Minimum Wages Order 2020.
 
It is clarified in FAQ No. 5 that the employer’s obligation to pay wages to its employees for the Relevant Period also applies to employees who fall outside the ambit of the Employment Act 1955, Labour Ordinance (Sabah Cap. 67) or the Labour Ordinance (Sarawak Cap. 76) as it is included in the employment contract between the employer and employee.
 
The employer is not allowed to compel an employee to take annual leave or no-pay leave during the Relevant Period (FAQ No. 6).
 
FAQ No. 7 clarifies that employees are unable to claim the RM 600 incentive (which was announced by the Government recently) as the requirement for the pay-out provides that the MCO has to be enforced for at least a month.
 
An employer performing essential services is not required to pay the wages of an employee for the Relevant Period if the employee is reluctant to attend work during that period (FAQ No. 8).
 
An employer may require an employee to work from home in respect of job functions which can be performed from home (FAQ No. 9).
 
FAQ No. 10 clarifies that an employer is required to pay the relevant allowances to an employee who works from home.
 
The full text of the MHR FAQs-I is available here.
 
MHR FAQs-II
 
FAQs No. 1 to 4 reiterates that non-critical works may not be carried out during the Relevant Period and provides examples of work which is considered as ‘critical work’. A summary of these works which is similar to those in the FAQs issued by the Ministry of Works is available here.
 
Prior approval must be obtained from Jabatan Keselamatan dan Kesihatan Pekerjaan (“JKKP”), i.e. Department of Occupational Safety and Health, to carry out any ‘critical work’. The application is to be submitted by email and the documents and information to be provided are set out in FAQ No. 5. Incomplete applications will be rejected by JKKP.
 
If a Notice of Improvement (‘NOI’) expires during the Relevant Period, proof of improvements must be submitted to JKKP by email. If upon evaluation, the JKKP officer is satisfied with the works carried out, he will provide a written response. Physical closure of the notice will be carried out after the Relevant Period (FAQ No. 8).
 
FAQ No. 10 explains that inspections by JKKP in respect of machineries with expired certificates of fitness during the Relevant Period may be postponed subject to the owner/ operator of the machineries submitting an application to JKKP. JKKP may authorise inspections to be carried out for “critical safety reasons” subject to the latest directives from the National Security Council (‘NSC’).
 
An employer who is given approval by the Government to operate during the Relevant Period must comply with the obligations set out in FAQ No. 13, namely -
 
  1. Employers must carry out risk assessments and improve work procedures to minimise exposure of Covid-19 to employees including reducing the number of employees to a minimum and establishing a system whereby employees who are not involved in critical work activities work from home;
  1. Employers must conduct health screening by taking daily body temperature readings of all employees at the entrance to the workplace and ensure that employees involved are free from fever, cough or breathing difficulties. Any employee who has abnormal body temperature should be referred to a hospital/ clinic immediately for consultation and medical treatment;
  1. Employers must identify employees who have visited countries affected by Covid-19 in particular employees who display symptoms such as fever, cough and breathing difficulties to obtain treatment immediately. The employer must comply with the quarantine instructions issued to the affected employee by the relevant registered medical practitioner or authority;
  1. All employers and employees are not allowed to travel abroad during the Relevant Period;
  1. All employers must provide appropriate personal protective equipment to their employees based on the risk assessment undertaken;
  1. Employers and employees must practise good personal hygiene such as washing their hands frequently with water and soap or hand sanitiser;
  1. Employers and employees must avoid visiting public places and interacting closely with individuals who have symptoms while practising social distancing amongst themselves;
  1. Employers and employees should seek medical attention immediately if they fall ill (i.e. display symptoms of respiratory tract infections such as fever, cough or breathing difficulties);
  1. Employees are urged to cooperate and comply with their employer’s instructions in dealing with this outbreak based on section 24(1) of the Prevention and Control of Infectious Diseases Act 1988; and
  1. Employers and employees must always comply with the Covid-19 prevention measures and procedures prescribed by the MOH and the NSC from time to time.
FAQ No. 18 explains that an employer who is affected by Covid-19 and wishes to deduct the salaries of employees in order to avoid retrenchment is required to negotiate and obtain the prior consent of the employees. If there is a collective agreement, the employer must also obtain the prior consent of the trade union which represents the employees.
 
A company which is required to close its premises during the Relevant Period is not prohibited under the MCO from instructing its employees to work from home. It may take disciplinary action against any employee who refuses to comply with such instructions. The company may not instruct its employees to attend work as usual or for half day as provided under the MCO. (FAQs No. 19 and 20).
 
FAQs No. 21 and 22 provide guidance on matters to be considered in relation to retrenchment of workers if an employer’s business is affected by the Covid-19 outbreak. FAQ No. 23 states that the closure during the Relevant Period is not a ground for frustration of contract.
 
FAQ No. 24 clarifies that the duration of the Relevant Period will be included in the calculation of the 60-day period within which an employee is to file representations to the Director General that he has been dismissed without just cause or excuse under section 20 of the Industrial Relations Act 1967 (‘IRA’). However, if the 60-days period expires during the Relevant Period, 1 April 2020 shall be deemed to be the 60th day.
 
Similarly, the duration of the Relevant Period is to be included in the calculation of the 14-day period stipulated in section 9(4) of the IRA within which a trade union is to report to the Director General of non-recognition by the employer; however if the 14-day period expires during the Relevant Period, 1 April 2020 shall be deemed to be the last day of that period (FAQ No. 25).
 
An employer cannot direct an employee who is suspected of, or has been tested positive for, Covid-19 to attend work during the quarantine period and cannot institute disciplinary action against the employee for non-attendance (FAQ No. 30).
 
The full text of the MHR FAQs-II is available here.
 
MOTAC FAQs
 
Of interest to the hospitality industry are FAQs No. 1 to 7 in the section, Premis Penginapan Pelancong (Tourist Accommodation Premises), which outline the obligations of operators of hotels, resorts, budget hotels and other accommodations.
 
The full text of the MOTAC FAQs is available here.
 
MOH FAQs
 
FAQ No. 17 sets out the steps that can be taken by employers and workers to prevent Covid-19 infection at the workplace, namely –
 
  1. Ensure that the workplace is clean and germ-free. Surfaces and tools/ equipment should be cleaned frequently with disinfectants;
  1. Encourage workers and customers to wash their hands frequently, for at least 20 seconds. Employers should also make available hand sanitisers at strategic locations in the workplace and ensure that the hand sanitisers are refilled frequently;
  1. Make available face masks and tissue paper at the workplace for workers displaying symptoms such as flu or wet cough. Employers should also make available proper disposal bins for disposal of tissue papers;
  1. Advise workers to seek travel advice before attending to work requiring workers to be stationed in areas affected by the Covid-19 outbreak; and
  1. Brief workers and customers if there is a Covid-19 outbreak in the local community and encourage workers and customers to exercise self-quarantine at home if they are unwell.
The full text of the MOH FAQs is available here.
 
MOE FAQs
 
Of particular note is FAQ No. 2 which states that Environmental Impact Assessment (‘EIA’) reports and input to development will continue to be processed by the Department of Environment (‘DOE’). However, the DOE’s client charter will be revised in light of the MCO. Additional information required to be submitted following the EIA Technical Review Committee meeting may be submitted to the DOE by email. Any EIA reports or new input to development may only be submitted after the Government announces that all government offices are to resume operations.
 
The full text of the MOE FAQs is available here.
 
MOHA FAQs
 
FAQ No. 4 states that an employer of essential services (both private and public) should issue a letter to each employee who is required to attend work at the office during the Relevant Period. The employee must produce the said letter as supporting documentation that he is required to travel to the office at road-blocks that may be erected during the Relevant Period.
 
FAQs No. 9 to 18 deal with immigration matters.
 
FAQs 38 to 41 relate to foreign workers. FAQ No. 38 states that the interview counters will be closed during the Relevant Period.
 
For levies where the payment deadline falls during the Relevant Period, FAQ No. 39 states that a two-week extension will be given from the end of the Relevant Period. 
 
The intake of foreign workers is suspended during the Relevant Period (FAQ No. 40). FAQ No. 41 clarifies that no extension of time will be given to an employer whose conditional approval for foreign worker intake expires during the Relevant Period.
 
The full text of the MOHA FAQs is available here.
 
MOF FAQs
 
The MOF FAQs will be considered according to the respective section and sub-section headings of the document.
 
Lembaga Hasil Dalam Negeri (Inland Revenue Board) (‘LHDN’)
 
General
 
For cases which are being audited/investigated, a taxpayer who is required to submit a document during the Relevant Period will be given an extension of time until 30 April 2020 (FAQ No. 2).
 
Forms
 
An extension of time will be given for filing certain forms with the LHDN (see FAQs No. 1 to 7 of this sub-section and in particular this table.)
 
Payments
 
The deadline for making certain payments and submitting certain related forms to the LHDN has been extended (see FAQs No. 1 to 11 of this sub-section). Payments made within the extended period will not be subject to penalty (see FAQs No. 6 and 9 of this sub-section).
 
Real Property Gains Tax
 
The submission of returns on the disposal or acquisition of real property and the payment of the amount withheld under section 21B of the Real Property Gains Tax Act 1976 and any amount stipulated in a notice of assessment that fall due during the Relevant Period has been extended to 30 April 2020.
 
Stamp Duty
 
A sale and purchase agreement for purchase of a house may be stamped by self-cancellation of a revenue stamp which can be purchased at a post office (see FAQ No. 1 of this sub-section for more details). 
 
Although not entirely clear, it appears that an extension of time to 30 April 2020 has been granted for payment of stamp duty where the deadline falls due during the Relevant Period (see FAQ No. 5 (applicable to manual stamping by individuals) and FAQ No. 7 (applicable to payment of stamp duty payable under a notice of assessment) of this sub-section). It is unclear whether the extension of time applies to instruments that are subject to nominal stamp duty.
 
Tribunal Rayuan Kastam (Customs Appeal Tribunal) (‘TRK’)
 
The filing of new cases will not be accepted during the Relevant Period as the TRK will not be able to issue a receipt for the filing fee. New cases can be filed over-the-counter after the Relevant Period (see FAQs No. 1 and 2 of this section).
 
The filing of documents in cases before the TRK have been postponed and new dates will be provided (FAQ No. 3 of this section).
 
In relation to cases where the 30-day period for appealing against the decision of the Director General of Customs expires during the Relevant Period, FAQ No. 5 of this subsection states that such cases will be ‘considered’ for a hearing by the TRK.
 
The full text of the MOF FAQs is available here.
 
The FAQs issued by other Ministries that may be of interest are set out below –
 
 

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