An Employer’s Vexing Dilemma on COVID-19 Vaccination

MECA answers employers' questions on whether they should impose vaccination for its employees and can a company stop non-vaccinated employees from entering the company premises?

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Can an employer make vaccination mandatory for its employees?

For most parts of this year, the manufacturing sector was found to be the main contributor to workplace clusters, with at least 46% of COVID-19 cases.

This is alarming because even a drop in the infection rates was from the workplace. It is detrimental for a business as employees and customers will be fearful of contracting the virus, compounded by the discomfort of being subjected to the COVID-19 test and the agonising wait for the results of the swab test. Moreover, companies would have to incur an unnecessary cost of sanitising the place, undertake the herculean task of contact tracing, loss of manpower due to quarantine requirements, closure of business for approximately 3 days and the potential damage to the company’s reputation.

The million dollar question that seems to vex every employer in Malaysia is how 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. This has to be balanced with scientific data which remains inconclusive as to whether the vaccine will be effective in eradicating workplace clusters.

The most common questions that come to play:-

  1. Can an employer make vaccination mandatory for its employees?

There is no law in Malaysia that permits employers to impose compulsory vaccination upon its employees.

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.

2.   What happens when employees refuse to be vaccinated? Can employers request the reason(s) for their refusal?

Yes, employees can refuse to be vaccinated due to medical, religious, personal beliefs and not provide a reason for their decision.

It is prudent for the employers to 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.

  1. Does this mean employees control the situation?

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:

  • the risks posed by this pandemic;
  • the measures available to minimise the risks;
  • the reasonable steps that could be taken to minimise the risks; and
  • the repercussions/consequences in taking and/or failing to take those reasonable steps.

Employers may decide, following such risk assessments, that having a vaccinated workforce would be necessary and reasonable in reducing the risk.

4.    How can employers strike a balance between fulfilling their obligations under OSHA and not compelling employees to be vaccinated?

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:

  • Healthcare services
  • Social welfare institutions such as nursing homes, childcare services12, and elderly care centre13
  • Beauty and wellness services
  • F&B industry
  • Construction industry
  • Offshore facility with a lack of quick access to healthcare
  • Aviation industry
  • Hospitality industry

In the event that the employer’s industry is considered high-risk, a vaccination policy should be implemented 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 crystalised, 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 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 or not vaccinated (depending on circumstances of the case), segregating the vaccinated and non-vaccinated 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.

  1. Can a company stop non-vaccinated employees from entering the companyAn Employer’s Vexing Dilemma on COVID-19 Vaccination premises?

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.

  1. Can employers take disciplinary action against non-vaccinated employees?

The Company can only do so if there is an existing COVID 19 prevention policy in place with the required SOPs addressing the do’s and don’ts of the employee’s obligation to the company and colleagues with that of the company’s obligation in compliance to OSHA.

Should the employee breach the SOPs, now this becomes misconduct to which the company can undertake appropriate disciplinary actions.

An Employer’s Vexing Dilemma on COVID-19 Vaccination
Ranita Markandan Consultant Meca Employers Consulting Agency Sdn Bhd ranita@meca.com.my

Do reach out to any of the consultants at MECA to assist you in the crafting of an effective COVID-19 Policy for the workplace.