- Intro
The government of Malaysia has established the Special Committee for Ensuring Access to COVID-19 Vaccine Supply (JKJAV) to implement and monitor the National COVID-19 Immunisation Programme (PICK) in order to curb the spread of COVID-19 virus. The vaccine rollout programme kicked off on 24 February 2021 and as of today, 10% of the residents in Malaysia have been fully vaccinated.
- Whether an employer could enforce mandatory vaccination on the employees
Under the common law, employers hold duty of care to the employees to provide a safe place to work. Meanwhile in Malaysia, there is no clear and specific provision that allows an employer to vaccinate the employees before or during the course of employment. In the absence of such specific provision, the general duty of an employer to ensure the safety, health and welfare at work for the employees is provided under Section 15(1) of the Occupational Safety and Health Act 1994 (“OSHA”). By virtue of Section 15(1) of OSHA, employers may rely on the provision in order to enforce the mandatory vaccination policy to the employees. However, employers must take into consideration on the circumstances that allow them to implement such policy and due to the lack of legislation on the mandatory vaccination, the employers cannot simply implement the policy. Such policy shall also include the consent of each employee as the employee’s consent to the mandatory vaccination at workplace shall be taken into consideration as well.
In the case of Department of Labour v Idea Services Ltd [2008] NZHSE 37, the court held that it was not a practicable step for the employer to require the employee for a blood test in order to prove immunity from Hepatitis B as one of its employees contracted Hepatitis B in the course of employment. This is because the employer had advised the employees to do medical screening and thus, the employer had adhered to the statutory duty under New Zealand Health and Safety and Employment Act 1992.
On the contrary, the employer in the case of Worksafe New Zealand v Rentokill Initial ltd [2016] NZDC 21294 was held to be liable under Section 6 and 50(1)(a) of the New Zealand Health and Safety and Employment Act 1992 due to their failure to abide by its own policy. In this case, the employer had a policy in which the requisite pre-employment is to do a screening or vaccination for Hepatitis B. However, the employer failed to conduct any screening and offer to vaccinate the employee although the employee had questioned on such issue with the supervisor. The employee was then got infected with Hepatitis B and the employer was guilty of breaching the statutory duty to ensure safety of the employee.
To sum up on the issue of mandatory vaccination policy by the employers, generally, employers cannot enforce mandatory vaccination policy at the workplace, unless, if the nature of the work requires the need for such policy to be implemented.
- Whether an employee be terminated for his/her refusal to be vaccinated
As of today, there is no local authority decided on the issue at hand. However, there are a few Australian cases which would shed some lights on this: -
(a) Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083
“The Applicant who was employed as a Group Leader with responsibility for the care of children was terminated on 13.08.2020. The Applicant was dismissed from her position as she failed to adhere to the company policy on mandatory flu vaccination which was enforced starting on 17.04.2020. However, since the case was filed out of time, the Queensland’s Fair Work Commission did not delve into the merits of the mandatory flu vaccination policy of the Respondent. Nonetheless, the Commission remarked that the Respondent’s mandatory flu vaccination policy as lawful and reasonable since it is the Respondent’s duty of care in attending children.”
(b) Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156
“The Fair Work Commission held that the mandatory flu vaccination policy implemented by the Respondent to be lawful and reasonable. The Applicant objected to the policy and argued that she has a sensitive immune system although she did not present valid medical exemption on having the vaccine and she only provided a medical certificate. The Respondent found that the medical certificate was insufficient and the Respondent decided to terminate her employment due to her failure to adhere to the mandatory flu vaccination policy. The Fair Work Commission made it clear that the requirement of mandatory flu vaccination by the Respondent was lawful as it was reasonable for the Respondent to implement the policy as safety and quality care of the children are paramount.”
(c) Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818
“The Applicant had refused to receive a flu vaccine alleging that she had an allergy reaction from the receipt of work-administered influenza vaccine in 2016. The Fair Work Commission upheld the termination in this case, as it is incompliance with the Public Health Order (PHO) issued by New South Wales government in 2020 to direct a person to not enter or remain on the premises of a residential aged care facility if they do not have the latest vaccination against influenza unless the non-vaccination due to absolute contraindication to the vaccine is certified by a medical practitioner.”
- Conclusion
Termination of employment in Malaysia must be for just cause or excuse and if an employee is dismissed without just cause and excuse, the termination can be challenged and the employee can be reinstated by virtue of Section 20 of the Industrial Relations Act 1967. In addition, it is not mandatory in Malaysia to vaccinate, as a person can opt out of vaccination due to several reasons such as age, disability, pregnancy or sex, and religion or belief. Therefore, a termination on this ground may be challenging.
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