Possible or not: Legal status of mandatory Covid-19 vaccination for employees in Malaysia

Published on 9/16/2021 - Issue Q3/2021

Currently, the Malaysian government has not made Covid-19 vaccination mandatory. That being said, there is also no law that disallows mandatory vaccination policies to be imposed by employers. As the Covid-19 pandemic is relatively new, there are no reported court cases on the legality of mandatory vaccination policies in Malaysia.

 
There is a possibility for employers to make the Covid-19 vaccination compulsory for employees if there is a government imposed requirement, i.e. if the relevant Ministries make employee vaccinations mandatory or a pre-condition for the approval to operate.

• Industry sector;
• Type of work performed;
  Vulnerability to the work force;
• Exposure to third parties;
  Possible alternative measure for business sustainability such as work from home, segregation of vaccinated and unvaccinated employees.

Employers must be cautious when making vaccination mandatory, as there are situations where an employee is unable to receive the Covid-19 vaccination due to an existing medical condition.

 
Can an employee refuse to take the Covid-19 vaccine?

Yes, employees have the right to refuse the vaccination. There are many valid reasons for an employee to refuse to be vaccinated, such as religious or medical grounds. Employees are encouraged to give supporting documents to justify their refusal, however, this is not compulsory.

Can disciplinary actions or termination be taken against employees for refusing to be vaccinated?

This issue has yet to be tested in the Malaysian courts. There are no legal prohibitions against an employer implementing a mandatory vaccination policy. There are many factors to be taken into account before considering disciplinary action against an employee who refuses to be vaccinated such as e.g. the following:

• Does the refusal result in a breach of duties, i.e. the employee´s job function requires them to physically interact with third parties;
• Has the refusal caused loss or damages to the company or other employees;
• Does the employers business involve high risk individuals; 
• Is vaccination a pre-condition from the industry authorities for the employer to operate.

Where the employee has a medical reason not to take the Covid-19 vaccination, employers should explore other alternatives measures to carry on business, such as transferring the employees to different roles  before taking any disciplinary actions.
 

If an employee does not have a reasonable reason to refuse vaccination, employers may view it as insubordination. Any disciplinary action for insubordination shall be proportionate and justifiable to avoid a claim from the employee.

Does the employer have a duty to provide a safe working environment?

Employers owe a duty to all employees to provide a safe and conducive working environment under the Occupational Safety and Health Act 1994 (“OHSA”). The OHSA imposes an obligation on the employer to take all reasonable and practical steps to ensure the health and safety of all employees at work. In order to satisfy this obligation, employers should conduct a Covid-19 risk assessment. Following the risk assessment, employers should decide whether it is necessary for their work force to be vaccinated. If the answer is affirmative, employers should have a Covid-19 vaccination policy drafted, and employees should be briefed on why it is necessary to have the policy in place. Employers would also be required to obtain consent for the Covid-19 vaccination from every employee.

 
Can employers introduce mandatory vaccination as a term and condition in employment contracts?

For new employees, employers should include the requirement to be vaccinated in the employment contract, so it would be considered as a condition to the employment. However, it is not the same for existing employees, consent from the employee is required for the insertion of a mandatory vaccination clause in the employment contract.

Conclusion

For high risk industries, employers are encouraged to conduct a Covid-19 risk assessment, and if the result of the assessment is medium to high, it is recommended to have a vaccination policy in place. The vaccination policy should be communicated to all employees and their consent to be vaccinated should be obtained.