Since the launch of the National COVID-19 Immunisation Programme in February this year, the number of vaccinated individuals amongst the Malaysian population is increasing every day. Many employers are hoping that all their employees get vaccinated so there can be a gradual return to business normalcy.
A common question asked is: Can an employer force their employees to vaccinate?
General Obligations for Employers Regarding Health and Safety
There is no law or regulation that compels or requires any person to be vaccinated against COVID-19.
However, employers must ensure that the safety, health and welfare of all employees are protected as far as reasonably practicable under the Occupational Safety and Health Act 1994 (“OSHA”). Given the pandemic, perhaps imposing a mandatory vaccination policy is part of this duty, since it would assist in protecting the health and safety of the employer’s workforce against COVID-19. This is especially so if the employer’s workforce includes vulnerable individuals, or if the employer’s business requires regular interaction with high-risk individuals.
Employers do need to consider there may be employees who cannot be vaccinated – for example, those with pre-existing medical conditions which may make it unsuitable or high risk for them to take the vaccine. Employers would then need to reasonably practicable steps to protect this group of employees.
There are two likely categories of individuals who may not consent to vaccination:
- Those who may have medical or health reasons (eg: taking the vaccine would be harmful to their health due to an existing condition); or
- Those who refuse due to personal beliefs (eg: an individual who is apprehensive because of lack of trust in scientific results, potential long term effects of the vaccine, etc)
An employer cannot physically compel an employee to vaccinate if they do not wish to. While an employer can respect the employee’s decision and their freedom of choice, the employer can also set out policies that explain the consequences of not being vaccinated.
Employees can therefore have the freedom of choice whether to vaccinate, and they can make a n informed decision knowing that their choice not to vaccinate may come with employment related consequences. For example, a mandatory vaccination policy could dictate that an unvaccinated employee required to deal with high-risk individuals may be reassigned or even dismissed if there are no alternative roles available.
So, what can employers do? At the time of writing, there is no case law in Malaysia about whether an employee can be fairly dismissed for refusing to be vaccinated or for violating a mandatory vaccination policy. However, applying general principles, it seems likely that a dismissal for non-vaccination could be upheld if the employer acted reasonably considering all circumstances such as the employee’s reason for refusal, the nature of the employee’s functions, the health risk posed by the pandemic, and whether the authorities have mandated vaccination as a pre-condition for the employer’s business to operate.
Employers should consider these practices when tackling vaccination:
- Incentives and education: Employers may encourage employees to get vaccinated by offering incentives, such as by providing paid leave for employees to attend their vaccination appointments and to recover from any side effects. Employers should also educate their employees on how getting vaccinated would increase the safety in the workplace, e.g. by providing training on conducting talks on vaccination.
- Implementing reasonable accommodations: Employers should consider reasonable accommodations for unvaccinated employees, especially where the employees have bona fide health or medical conditions. Employers should conduct risk assessments to consider viable options to be taken which are reasonable and proportionate to the risk. Employers may consider assisting these employees in seeking alternative roles within the organisation, implementing remote working measures, etc. to minimise contact with other employees.
- Vaccination as a job requirement: Employers can consider making proof of vaccination a pre-requisite to any job offer, and employers may carry out pre-employment health screening to determine whether an employee qualifies. Employers may also require vaccination to be a condition agreed in the employment contract.
- Written policies: A clear and well written policy will minimize the risk of a dispute. Employers should explain their reasons for wanting employees to be vaccinated, the importance of vaccination, and the consequences to an employee who chooses not to be vaccinated.
Increased vaccination rates have been proven to benefit the community. Combating COVID-19 is a shared responsibility, and both employers and employees should act reasonably when dealing with vaccination issues.
This article was written by Donovan Cheah (Partner) and Adelyn Fang (Legal Manager). Donovan has been named as a recommended lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019 and 2020, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.
Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory. Have a question? Please contact us.