The COVID-19 pandemic has brought up seemingly endless unique legal challenges for businesses and employers for the past 18 months, and counting. Beginning with lockdown and restrictions, remote working, paycuts, retrenchments and reorganisations, businesses in Malaysia and many other jurisdictions are now focusing on reopening, and hopefully moving into a post-pandemic future.
In recent weeks, we have been reading about the issue of mandating vaccines for employees. The legality of so-called “no jab no job” policies continues to be debated in major jurisdictions such as the UK, US, and Europe, where the reopening of the economy is at a more advanced stage than Malaysia, and where many companies have been implementing mandatory vaccination policies. Multinational companies with a Malaysian presence are now looking to roll out those policies in their Malaysian offices too. However, the law can be very different across jurisdictions, and employers will need to tread with caution and consider not just the legal but practical repercussions before making vaccinations mandatory for their employees.
In this article, I set out the legal position on this issue, and the key issues employers need to consider. I’ve also previously shared some of my views on this with The Malay Mail in their piece earlier this month — “Can Malaysian employers make Covid-19 vaccinations mandatory for their staff? Lawyers explain.”
Will a mandatory vaccination policy be legal?
For now, Malaysian law does not expressly impose a legal obligation on employers to ensure that their employees are vaccinated. There also aren’t any previous Malaysian court decisions that are directly relevant to this issue. This means that the legal position is undecided, and open to debate.
However, generally speaking, my view is that the introduction of a mandatory vaccination policy would be legal for many employers. This obviously is dependent on several relevant factors.
Reasonableness and other relevant factors
Employers have a general common law duty to provide a safe workplace or working environment for their employees. In view of the serious impact that COVID-19 has been shown to have on individuals and communities, it’s reasonable to expect that this duty would extend to drafting and implementing effective policies to reduce the risks related to COVID-19. This is also consistent with the statutory duty of employers to ensure the health, safety, and welfare of their workers. This means that employers would be expected to take reasonable or practical steps to ensure the safety of their employees.
Another general rule is that employers are able to issue — and employees are required to comply with — lawful and reasonable directions to their employees. This concept of “reasonableness” therefore becomes very important, and it is very much open to interpretation. Whether or not an action or direction is reasonable will always depend on the specific facts, and will have to be considered on a case-by-case basis.
If a mandatory vaccination policy is challenged in court, I anticipate that the following issues will be relevant in deciding whether the requirement was lawful or reasonable:
- Where the role involves interaction with potentially vulnerable members of the community (for example, in an aged care facility, childcare centre, or school), there is a clear justification for requiring that employees are vaccinated. Arguably, this could also apply to roles which generally involve close interactions with members of the public, which would include customer-facing roles in a wide range of industries.
- Some jobs also mean that employees are particularly exposed to COVID-19 risks. This includes employees who work in quarantine or screening roles, or whose jobs mean they interact with people in those roles, such as in airports or quarantine facilities.
- How the work is carried out would also be relevant. For example, some jobs inevitably require working in indoor spaces, with limited ability for employees to maintain social distancing.
- The reasons for and manner in which the mandatory vaccination policy is implemented would also be relevant. Even if employees do not fall within the 3 scenarios mentioned above, it may be possible to lawfully implement a mandatory vaccination policy, particularly if the employer can show that the decision was made for genuine reasons, and that the implementation was done in a reasonable manner. Some examples of a best practice include having an open dialogue with employees, clearly explaining the reasons behind the policy, highlighting the importance of vaccinations, allowing a reasonable timeframe for compliance, and ensuring that employees who are unable to be vaccinated (because of underlying health/medical conditions) are reasonably accommodated. The reason or justification behind the implementation of the policy will be closely scrutinised by the court in the event of a legal challenge.
What if vaccinations are required by law?
As previously mentioned, Malaysian law currently does not expressly impose an obligation on employers to mandate vaccinations. It’s fairly clear that if such a legal requirement existed, then employers would unquestionably be able to impose mandatory vaccination policies.
However, there are signs that laws/regulations may be put in place which arguably create an implied obligation on employers to ensure employees are vaccinated, or which at least provide added justification for such a requirement. At the time of writing, employers in several sectors (construction, manufacturing, mining, and quarries) have their on-site operating capacities pegged to the percentage of employees who are fully-vaccinated. The more employees are fully-vaccinated, the higher the permitted operating capacities. It has also just been announced that businesses such as cafes and restaurants offering dine-in services are also only allowed to operate at full capacity if at least 80% of their employees are vaccinated.
In my view, where businesses have been saddled with such employee vaccination thresholds as a condition to operating at certain capacities, it provides a strong basis for employers to assert that mandating vaccinations is a reasonable policy.
In conclusion, as mandatory vaccinations are obviously a new and unique issue, there isn’t any clear law or case precedent to rely upon for a clear position on the legality of implementing mandatory employee vaccination policies.
My view is that most employers should be able to make vaccinations mandatory for their employees, as long as —
- employers can show that the policy is being implemented for genuine reasons;
- the policy is rolled out in a reasonable manner, including proper consultation/dialogue with employees; and
- reasonable flexibility is provided for those who are unable to be vaccinated — such as the option to be redesignated or redeployed to a role in which non-vaccination poses less of a risk.