Malaysia’s Human Resources Minister M. Saravanan caused a stir late last week when he was widely reported (see Bernama, Malay Mail, The Star) as saying that action could be taken against employees who refuse to be vaccinated. While recognising that vaccinations have not been made mandatory under Malaysian law, Saravanan said that the authorities could take action under the Occupational Safety and Health Act 1994 (“OSHA”).
The legal position regarding mandating employee vaccinations has been widely-discussed in recent weeks, and I’ve previously shared my views on this blog (“Is it legal for Malaysian employers to make vaccinations mandatory for employees?”), as well as with the media (“Can Malaysian employers make Covid-19 vaccinations mandatory for their staff? Lawyers explain.”).
So what exactly does OSHA provide, and can the authorities really rely on OSHA to take action against employees who refuse to be vaccinated?
The relevant provisions of OSHA
OSHA’s overall purpose is to ensure the safety, health and welfare of persons at work, and for protecting others against risks to safety or health in connection with the activities of persons at work. It generally does not apply to all workplaces, and only applies to the following industries specified in the First Schedule:
- Mining and quarrying.
- Agriculture, forestry and fishing.
- Utilities (electricity, gas, water, and sanitary services).
- Transport, storage and communication.
- Wholesale and retail trades.
- Hotels and restaurants.
- Finance, insurance, real estate, and business services.
- Public services and statutory authorities.
Saravanan is reported to have said that the authorities can rely on OSHA to take action against employees who refuse to be vaccinated, because an unvaccinated person causes danger to his/her colleagues in the workplace.
Although Saravanan did not specify the specific provisions of OSHA he was basing his assertion on, the relevant provisions appear to be in Section 24.
Section 24(1) states:
(1) It shall be the duty of every employee while at work —
(a) to take reasonable care for the safety and health of himself and of other persons who may be affected by his acts or omissions at work;
(b) to co-operate with his employer or any other person in the discharge of any duty or requirement imposed on the employer or that other person by this Act or any regulation made thereunder;
(c) to wear or use at all times any protective equipment or clothing provided by the employer for the purpose of preventing risks to his safety and health; and
(d) to comply with any instruction or measure on occupational safety and health instituted by his employer or any other person by or under this Act or any regulation made thereunder.
Section 24(2) states that employees who contravene the provisions of Section 24 could upon conviction be liable to a fine not exceeding RM1,000, or to imprisonment not exceeding 3 months, or to both.
Can the authorities rely on OSHA to take action against employees who refuse vaccinations?
As can be seen above, the provisions of Section 24 are worded fairly widely. While there is no precedent in Malaysia where OSHA has been used to take action against employees who refuse to be vaccinated, there are some instances in other jurisdictions where this has happened (for non-COVID vaccinations, and very specific circumstances where vaccinations were deemed crucial in the workplace).
It could reasonably be argued that a vaccination is required for an employee to fulfill his duty of taking reasonable care for the safety and health of himself and of other persons (his colleagues, customers, or the general public) while he is at work [Section 24(1)(a)]. This would particularly be so where the employee’s role requires him to be customer-facing, or have close interactions with vulnerable members of the community.
Section 24(1)(b) imposes a duty on the employee to cooperate wth his employer in discharging a duty or requirement imposed on his employer by OSHA. Section 15 of OSHA sets out the general duties of employers. I will not set out the full provisions here, but suffice to say that employers are under a duty to ensure the “safety, health and welfare at work” of all employees, and specifically includes ensuring “absence of risks to health” and providing a working environment that is “safe” and “without risks to health”. It can be argued, bearing in mind the high number of deaths that COVID-19 has caused all over the world, having an unvaccinated employee at the workplace could be a “risk to health” for colleagues and other individuals at the workplace. While not directly relevant to the discussion in this article, the obligations of employers under OSHA could also be relevant in the workplace vaccination discussion generally, as the penalty for employers is much harsher — a fine not exceeding RM50,000, or to imprisonment for a term not exceeding two years, or to both. Will we soon see employers being pressured to implement mandatory employee vaccination policies?
The duty created by Section 24(1)(c) is an interesting one. If it proves difficult or legally-prohibitive to mandate vaccinations, I could see it being possible for an employer to rely on this sub-section to instead require unvaccinated employees to wear protective equipment or clothing which is not required of vaccinated employees. An unvaccinated employee undeniably has a higher risk to his own safety and health, and an employer could reasonably require this employee to at all times in the workplace be double-masked, wear a face shield, or even full PPE depending on the circumstances. An employee who chooses not to be vaccinated would have to comply with this requirement, or be in breach of OSHA.
Section 24(1)(d) is fairly clear, and creates a more general duty to comply with instructions or measures on occupational safety and health. This would include a vaccination policy put in place by his employer.
It therefore does appear that the authorities could theoretically rely on OSHA to take action against employees who refuse to be vaccinated. However, in practice this will probably be a last resort, and is unlikely to happen unless there are very specific circumstances where the national vaccination rollout is nearing completion, and particularly high-risk employees are unreasonably refusing to be vaccinated.
Malaysia is still a few months behind some other countries in its post-COVID reopening strategy, but some employers are already laying the groundwork for potentially introducing mandatory vaccination policies. The final quarter of 2021 should see interesting developments in relation to mandatory vaccinations, particularly as with the HR Minister’s recent statement the government has taken its first steps towards pressuring employees to be vaccinated.