This Legal Insights aims to provide general understanding on the legal relationship between Covid-19 vaccines and employment law in Malaysia.
Introduction
- The outbreak of the coronavirus (Covid-19) pandemic has led to unprecedented challenges to humankind and the economic and social disruption caused by the Covid-19 pandemic are devastating.
- Now, with the arrival of the much awaited Covid-19 vaccine in Malaysia, Malaysians are growing hope that the Covid-19 pandemic will be more manageable.
- Nevertheless, there are certain group of people who refuse to be vaccinated with the Covid-19 vaccine for reasons such as concerns about the safety, effectiveness and side effect of the vaccine.
- This has caused difficulties to employers who wish to introduce the Covid-19 vaccination to all employees in providing a safer working environment.
- The main concern that most employers have is whether the employer can compel the employee to accept Covid-19 vaccination in Malaysia.
- Read on to find out what you need to know on this.
Legal Position – General
As of 1 March 2021, the Malaysian Government has not made the Covid-19 vaccination compulsory nor has there any statutory provision in Malaysia allowing for the compulsion of Covid-19 vaccinations.
Further, the Frequently Asked Questions (“FAQs”) issued by the Ministry of Health on 31 December 2020 states that the intake of Covid-19 vaccine is voluntary.
Question and Answer No. 25 of the FAQs (at page 13) states that:-
- For now, the intake of Covid-19 vaccine is voluntary.
- Individual involved must fill up consent form in order to obtain the vaccine injection.
- The public in general is encourage to take the Covid-19 vaccine and follow the fixed schedule for maximum immunity protection.
Source: https://www.infosihat.gov.my/images/media_sihat/lain_lain/faqvaksin/mobile/index.html
Legal Position – Considerations
In the absence of any written agreement between employer and employee on the Covid-19 vaccination, employers who wish for all employees to be vaccinated must first consider the following:-
(a) the employers’ and employees’ duties under the law of Malaysia;
(b) the reasons why the employees refuse to be vaccinated; and
(c)whether there are any exceptional circumstances which justify compulsory vaccination.
Consideration (1) – Employers’ and Employees’ Duties
The employers’ and employees’ duties are governed under the Occupational Safety and Health Act 1994 (“OSHA”) which provides the following:-
1.Section 15 of the OSHA states that it is the duty of the employer to ensure, so far as is practicable, the safety, health and welfare to work of all his employees includes:-
- The provision of such information, instruction, training and supervision as is necessary to ensure, so far as is practicable, the safety and health at work of his employees;
- The provision and maintenance of a working environment for his employees that is, so far as is practicable, safe, without risks to health, and adequate as regards facilities for their welfare at work.
2. Section 24 of the OSHA states that it is the duty of the employee to comply with any instruction or measure on occupational safety and health instituted by his employer.
Note: Based on the above, the employers may rely on Section 15 of OSHA to require its employees to be vaccinated on grounds of the current scale and speed of transmissibility of Covid-19 as part of its duty in keeping a safe and healthy workplace for its employees!
Consideration (2) – Reasons for Refusal of Vaccination
The second consideration by the employers is to understand the actual reason why the employees are refusing to be inoculated. There are 2 scenarios on the refusal by employees:
Consideration (3) – Exceptional Circumstances
The third consideration by the employers is to look at the facts of each cases which, includes but not limited to, the nature of the employment. For instance, employers in the following industries may justify that the employees should be compelled to take Covid-19 vaccines (subject to the suitability checking before accepting the Covid-19 vaccines):-
- The employees of frontline of medical care who having frequent and close contact with Covid-19 patients; and
- The employees of childcare center and old folks home.
In the Australia, the Deputy President Asbury of Fair Work Commission states:-
“While I do not go so far as to say that the Applicant’s case lacks merit, it is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.”
Source: Ms Nicole Maree Arnold v. Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083
Published by Messrs Benjamin Tan & Co.
© Messrs Benjamin Tan & Co 2021. All rights reserved. The views, opinions and contents of this publication are intended for purposes of general information, academic discussion and personal purpose only and this publication is not meant to be comprehensive and does not necessarily deal with every important topic nor cover every aspect of the topics with which it deals. It should not at any time be construed as legal advice, legal opinion and/or other advice/opinion on any fact or circumstance.
