Malaysia: Q&A - Employer COVID-19 Vaccination Policies

Can an employer compel compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?

There is no law mandating the vaccination presently. Given that this is outside the sphere of the employment relationship, my view is that the employer cannot compel the requirement of the vaccination unless there was such a condition or term of employment to this effect in the contract of employment which is unlikely.

Can employees refuse to be vaccinated - how does this balance against the freedom of choice and the obligation to provide a safe work environment?

Yes, employees can potentially refuse to be vaccinated save where there is express provision mandating the vaccination or the nature of employment necessitates such measures. The refusal may stem from concerns with inter alia the efficacy of the vaccine, side effects for those with existing medical conditions or on account of their religious beliefs. The right of autonomy and fundamental liberties in turn need to be balanced against the obligation to provide a safe working environment. This necessitates the employer to ensure that it has in place reasonable safety precautions implemented to mitigate the risk of potential risk of transmission - practicing social distancing within the office premises, temperature checks, compulsory use of face masks, frequent sanitization to discharge the obligation vested in the employer.

In the event of a refusal can an employee be dismissed for refusal to comply with such a vaccination policy - will that constitute just cause for termination?

The refusal of the vaccination would not in my view amount to just cause for termination. Whilst arguable that the cause for termination will be intertwined with the nature of employment exercised for instance those having frequent and close contact with individuals for instance those in the frontline of medical care, it will be an extreme measure to terminate employment for refusal to undertake the vaccination.

Contributor

Suganthi Singam, Shearn Delamore & Co.
suganthi@shearndelamore.com