Covid-19, Covid-19 Vaccine, Malaysia

Covid-19, Covid-19 Vaccine

Can employers make COVID-19 vaccinations mandatory for all staff? Here's what lawyers say |

Many Malaysian businesses are hoping to open again once their employees are fully vaccinated. But what can companies do if an employee says no to COVID-19 vaccination?

2/8/2021 7:59:00 AM

Many Malaysia n businesses are hoping to open again once their employees are fully vaccinated. But what can companies do if an employee says no to COVID-19 vaccination?

Many businesses in Malaysia have pinned hopes of being able to operate again on their employees being fully vaccinated against COVID-19, but can they make it compulsory for all staff members to do so? One example is the retail industry which has been hit hard by the many lockdowns and restrictions as only outlets selling […]

He listed examples such as the employee’s reason for refusal; whether the employee’s refusal amounts to a breach of their duties or has caused loss or damage to the company or other employees; whether the employee’s job function requires him/her to have regular and frequent physical interaction with third parties.

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Other factors listed by Cheah are the current severity of the pandemic; whether the employer’s business deals with high-risk individuals; and whether vaccination is a pre-condition from the authorities for the employer to operate.“Where an employee has a legitimate reason to refuse vaccination (eg: health condition), employers should explore other ways to address the risk, such as requiring them to carry out their duties remotely and not allowing them to enter the premises without notice,” Cheah added.

Van Geyzel said employers would have several options, when vaccinations are a precondition for operations but there are employees who refuse to get vaccinated.These options are to engage with the employees, or to transfer employees to alternative roles, or to ultimately stop employing the employee.

“The first step should always be for employers to have clear and open conversations with these employees to ensure that they understand the reason for the vaccination requirement.“Employers can also consider redesignating or redeploying the affected employees to other roles within the business which are not customer-facing and which may be exempted from the regulatory requirements,” he said.

If redesignation and redeployment is not an option, employers would be legally able to terminate the employee’s employment if it is reasonable in the circumstances, he said.Van Geyzel said there is a general legal expectation that an employee has to follow all lawful and reasonable instructions by the employer.

He added that it can be argued that an employee is carrying out an act of insubordination by refusing to be vaccinated under the circumstances, as the employee is wilfully disobeying a lawful and reasonable order issued by the employer.“Any punishment or action by the employer in response to insubordination has to be reasonable or proportionate, and it can be said here that where the result of the employee’s vaccination is that the business would not be allowed to operate, there are serious repercussions and therefore termination of employment is a reasonable response by the employer.

“Another potential justification for termination of employment is that an unvaccinated employee would be unable to perform the job or service for which the employee was employed. This would be the case if an unvaccinated employee is not permitted by law to work.

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“In such a situation, it may be reasonable for an employer to deem that the employment contract cannot be performed and therefore can be terminated,” he said.3. What if an employee says no to vaccination due to health conditions?As for employees who are unable to receive COVID-19 vaccinations due to a medical condition, van Geyzel said employers could explore measures such as redesignation.

“Firstly, I don’t think the government would make vaccinations mandatory for such employees. “Secondly, even if the government issued a blanket requirement, the employer should see if it’s possible to apply for an exemption for that employee, or again see if redeployment or redesignation is an option. 

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