COVID-19 challenges at the workplace
 
COVID-19 outbreak has been dominating the news since the past year, and workplace-related clusters have been making headlines for contributing to the rise in COVID-19 cases. Between 1 April and 26 May 2021, the manufacturing sector was found to be the main contributor to the workplace clusters, with 46% of the COVID-cases contributed by this sector alone.¹ This statistic is a cause of concern as even one COVID-19 positive case at the workplace is detrimental to businesses. Employees and customers/clients will be fearful to attend at the workplace not just due to the risk of contracting the virus, but also to avoid the discomfort of being subjected to the COVID-19 test; and the stress to themselves and family members every time a colleague tests positive.
 
Businesses may also incur additional expenses and have to commit resources in engaging professional sanitisation services, contact tracing, appropriate communication both internally and externally, dealing with loss of man-hours due to quarantine requirements, and possibly the costs of testing for infections. Temporary business closures pending all steps being taken to ensure a safe working environment for employees and customers adds to the financial burden. To top it off, reputational damage may also injure the business.
 
As we enter this full movement control order phase, questions are being raised as to whether employers may or should take matters into their own hands to ensure a COVID-free workplace and to what extent they may impose requirements that may infringe on employees’ private rights especially now that the vaccine has become available not just as part of the National COVID-19 Immunisation Programme/Program Imunisasi COVID-19 Kebangsaan (“PICK”) but also as part of the parallel AstraZeneca COVID-19 inoculation programme that was made available for public registration thrice. The AstraZeneca programme has since been reincorporated into PICK² and will be administered along with other vaccines in mega-sized vaccination centres, drive-through vaccination points³, general practitioner clinics, private hospitals⁴ and mobile vaccination trucks⁵.
 
While scientific data remains inconclusive as to whether the vaccine will be effective in eradicating workplace clusters, a survey by people, payroll and benefits solutions provider, Employment Hero, indicates that around 70% of Malaysian businesses would mandate COVID-19 vaccinations for all their employees.⁶
 
Malaysia’s National COVID-19 Immunisation Programme (PICK)⁷
 
Under PICK which commenced on 26 February 2021, COVID-19 vaccination is administered on a voluntary basis and will be provided free of charge to all residents in Malaysia (citizens and non-citizens), aged 18 years old and above.
 
PICK is divided into three phases:

It is therefore likely that the larger part of our working population will come within the third phase unless they work in the healthcare industry. However, the availability of the parallel AstraZeneca vaccine programme, also voluntary, and the expedition of PICK has accelerated the need to find answers to the vexing vaxxing questions.
 
Mandatory vaccination policy

Presently there are no statutory provisions that allow employers to implement a mandatory vaccination prior to entering the workplace or commencing employment.
 
In fact, it is pertinent to note that the Malaysian Government has not made the vaccination mandatory⁸, although there are discussions to do so due to the lukewarm reception from the general public in registering for the vaccine.^9]10 Even World Health Organisation (WHO), does not envisage any countries making vaccination compulsory.¹¹
 
In the absence of legal backing, employers lack the authority to mandate vaccination.
 
Apart from the lack of legislation allowing for vaccination to be made mandatory, employers may infringe an individual’s right if they impose and/or mandate vaccination. Imposing or forcing a medical treatment/procedure on an individual is a trespass on the person which is a basic principle enshrined in common law.
 
In common law, all competent adults can consent to or refuse medical treatment. If consent is not established, there may be legal consequences. Under the law of trespass, individuals have a right not to be subjected to a medical treatment/procedure, especially, to one that is invasive in nature without consent or other lawful justification, such as an emergency or necessity. 
 
Considering the above, as a general rule, employers may not make vaccinations compulsory.

Yes, employees can refuse to be vaccinated. Employees may opt out of vaccination due to medical, religious, and/or safety reasons and do not need to give a reason for their decision. Employers may manage the situation by requesting some evidence to support the reason, if given, e.g. requesting for a letter or certification from a medical practitioner if the employee cites medical grounds in support of the refusal.

No. Employers have an overriding and non-negotiable duty to provide a safe and conducive working environment under the Occupational Safety and Health Act 1994 (“OSHA”). The OSHA imposes an obligation on the employer to take all reasonably practicable steps to ensure the safety and health at work of all employees. It is for the employer to perform COVID-19 risk assessments to identify what steps should be taken to fulfil this obligation.
 
In performing COVID-19 risk assessments, employers should consider:
 

 
Employers may decide, following such risk assessments, that having a vaccinated workforce would be necessary and reasonable in reducing the risk.
 
The question of whether a direction from the employer to impose mandatory vaccination is reasonable will depend on the circumstances of the case e.g., the industry sector, type of work performed, vulnerability of the workforce, exposure to third parties, etc.

When performing COVID-19 risks assessments, employers should determine how important having a vaccinated workforce is to their business sustainability. Some examples of high-risk industries where the implementation of a mandatory vaccination policy may be found reasonable are as follows:
 

 
In the event that the employer’s industry may be considered as high-risk, a vaccination policy should be crafted to manage the risk. The policy should cover the reasons why the vaccination is required, the manner in which the vaccination will be carried out, a date by when the employer is looking to have a fully vaccinated workforce, the repercussions of employees not getting vaccinated if any.
 
Once the vaccination policy is formulated, it should be communicated to the employees and their consent to be vaccinated should be procured. Such consent should be documented and should be specific in nature, referring specifically to the COVID-19 vaccination. Naturally, the consent should include the necessary disclaimers to protect the employer.
 
If an employee nevertheless refuses to be vaccinated, employers should determine their next course of action, depending on how this refusal impacts the business and their obligation to other employees. For example, implementing work from home policy for those who are vaccinated/unvaccinated (depending on circumstances of the case), segregating the vaccinated and the unvaccinated employees by placing them in different areas in the office, continued social distancing, hand sanitising, and mask-wearing practices in the premises, or even implementing periodic COVID-19 screening.

Before employers prohibit unvaccinated employees from entering the premises, employers must assess whether the unvaccinated employee poses a direct threat to the health and safety of the workplace and whether the threat is sufficient to exclude them from being present in the workplace. Employers should also consider if there are methods available to reduce the risks to allow for the employee to return to work safely.

All employers in Sarawak including the services, hospitality, construction, manufacturing, and plantation sectors are required to register their employees for PICK.¹⁴ Employers are also responsible for registering their documented and undocumented migrant workers.¹⁵ These are however Government directives which have yet to translate to law. Further, since there is no absolute right for employers to require employees to be vaccinated and since the registration process will involve the utilisation or transfer of employees’ personal data which is for a purpose not envisaged when the employment contract was entered into, prior employees’ consent should be obtained when registering the employees for PICK.

Employers may include this requirement in the contracts of employment for new employees as it is similar to the requirement of clearing background checks, medical checks, and/or reference checks. It is also similar to a requirement to fulfil certain criteria of employment, for example, the requirement to have a driving licence or language proficiency.
 
However, for existing employees, an introduction of a mandatory vaccination clause would require consent from the employees as this is a fundamental change to the terms of their employment and may be construed as placing the employees in a less favourable position since the employees must now fulfil an additional condition of employment.

Besides the Malaysian Federal Government that is sourcing and administering vaccines to the general public under PICK, state governments¹⁶ are also permitted to secure their own COVID-19 vaccines. As of 19 May 2021, the Sarawak state government was permitted to purchase Sinovac COVID-19 vaccine.¹⁷ Additionally, the Selangor state government has procured vaccines¹⁸, and employers in Selangor are allowed to purchase the vaccine through the Selangor state government via the Selangkah VAX website or app¹⁹. Given these developments, it is possible that other state governments will follow suit in the procurement and administration of vaccine.
 
The possibility of two other options has recently opened up with the Public Private Partnership (PPP) Immunisation Model allowing for on site vaccination of employees in the manufacturing and related services sectors only and the Private Immunisation Model (Special Request) for Business Travellers. ²⁰ The anticipated dates of when these programmes will actually be implemented are not known yet.
 
Prime Minister Muhyddin Yassin also announced that private entities may purchase their own COVID-19 vaccines as long as approval from the National Pharmaceutical Regulatory Agency (NPRA) is obtained. ²¹

Under Malaysian laws, employment may only be terminated if continuing to keep the employee in employment is not tenable. The question that therefore needs to be answered is whether an employee’s stance in refusing to be vaccinated is incompatible with the needs of the business. Naturally, this issue has yet to be tested in the Malaysian courts.
 
In Australia, in four different cases commenced by employees who had been dismissed on such ground, the Australian Fair Work Commission held that the policies requiring mandatory vaccination were reasonable in the context of operations that principally involved elderly care^22 23 and childcare^24 25, and the employees’ unfair dismissal actions were accordingly dismissed. The common points in these cases^26 27 28  include that the employees worked in close proximity with vulnerable members of society and the employees’ medical exemptions were not met.
 
These cases lend support for the argument that should a dispute arise from a mandatory vaccination policy, the Courts would determine the case based on facts of each case and seek to strike a balance in protecting all stakeholders - the particular employee who refuses, the other members of the workforce, and customers or clients.
 
As in all other instances where termination of employment is contemplated, prudence should be exercised to ensure that the decision is justifiable bearing in mind that the financial exposure in an unjust dismissal action can be substantial.

A reduction in job scope is inevitable if the employee’s refusal to be vaccinated renders him/her to be unable to perform an integral part of his/her job. This situation may arise if a large part of the employee’s job scope requires travelling or close interaction with other persons, whether co-workers or customers.
 
It may also be argued that the employee’s contract of employment is partially frustrated because the employee cannot discharge his/her duties entirely. However, this is only permissible if the employee is in actual fact, unable to perform his/her job function remotely, away from other employees/workplace, or if the employer’s business is truly affected by the employee’s vaccination status. If the job scope is reduced by the employer simply due to the employee’s refusal to be vaccinated without any real basis, the employee may commence a constructive dismissal action or a discrimination or victimisation claim against the employer.
 
When rolling out the vaccination policy, employees should also be informed that if they are not vaccinated, this may affect their job scope or job progression, although the rationale for the same should be adequately communicated.
 
Encouraging and incentivising vaccination
 

The Human Resource Ministry has encouraged employers to grant vaccine leave to their employees to enable them to fulfil their vaccine appointments. However, it was also announced that the discretion to do so ultimately lies in the hands of the employers.²⁹ To date, many organisations have taken initiatives to offer vaccine leave.
 
As a matter of good practice, if employers require employees to be vaccinated, then the work hours missed to get vaccinated should be treated as unrecorded paid time off.

Yes, employers may encourage and incentivise employees to be vaccinated by providing them with incentives such as vaccine leave or paid time off, covering the cost of taking the vaccine (considering that private entities are now allowed to procure the COVID-19 vaccine), providing vaccine bonuses or incentives, or gift cards/care packages.
 
However, incentivising the vaccination could expose employers to liability issues as vaccinations are not risk-free, and should there be a remote case where an employee develops serious adverse side-effects, the employee may allege that if not for the employer’s encouragement the employee would not be suffering such ill effects.
 
The most prudent approach would be for employers to run campaigns to raise awareness about the importance of vaccination and communicate the incentives made available but at the same time stress that the employer does not warrant the safety of the vaccine and that the decision lies with the employees.
 
Collecting vaccination status
 

No, employers should not compel employees and/or visitors to provide details on their vaccination status unless this has been previously covered by the existing Personal Data Protection Act Notice and Consent forms.
 
Under the Personal Data Protection Act 2010 (“PDPA”), “sensitive personal data” is defined to include any personal data consisting of information as to the physical health or condition of the employee/visitor/data subject. An employee’s and/or visitor’s COVID-19 vaccination status would therefore fall within the definition of “sensitive personal data” under the PDPA.
 
Accordingly, employers are by law required to obtain the explicit consent of their employees and/or visitors before processing sensitive personal data. The explicit consent shall be clear, unambiguous, and be in a form that can be recorded and maintained properly by the employer.

There is currently no statutory legislation requiring the recordkeeping of employees’ vaccination status.
 
If an employer intends to collect information on employees who have been vaccinated, explicit consent from the employee must be obtained (see Q&A 13 above).

The Government announced a COVID-19 vaccine injury fund to compensate individuals who might develop side effects from being immunised. Vaccine recipients who suffer serious side effects that require lengthy treatment in hospital stand to receive RM50,000 and those who suffer permanent impairments or death will get RM500,000.³⁰
 
Conclusion
 
Given the continuous battle with COVID-19 ever since its emergence, vaccination appears to be our only ticket back to normalcy. With more employees being able to return to a safe workplace, productivity will be heightened and businesses will be ready to turn around the economic impact caused by the pandemic as they are less prone to closures and disruptions.
 
The Q&A above reflects the various ways the COVID-19 vaccines impact the workplace. The legal and practical landscapes of vaccinations are constantly evolving as there are daily developments to the government policies, especially now as the cases are at an all-time high. Employers who seek to implement mandatory vaccination policy should stay up to date on such developments and seek legal advice before proceeding with the same.

This article is contributed by Selvamalar Alagaratnam (Partner) and Sareeka Balakrishnan (Associate) of the Employment Practice Group of Skrine.

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