Can employers can compel their employees to get vaccinated? This article discusses your rights and duties, whether as an employer or employee, in relation to vaccination and ensuring a safe working environment.
When the number of Covid-19 cases began to rise in Malaysia, the Malaysian Government acted promptly and implemented Movement Control Orders (“MCOs”) across the country to combat the disease and contain the virus.
While the MCOs were effective in flattening the curve, they have severely damaged economic activity; many companies and businesses have suffered, and some even crippled by these measures
This explains why many in the country have been anxiously waiting for a vaccine.
It is hoped that by mass vaccination, the virus can finally be effectively contained if not eradicated, Malaysians can finally return to their pre-pandemic lifestyles, and the decision between saving lives and sustaining the economy no longer needs to be made.
Then, the question that many employers have is what are their obligations and rights when it comes to the vaccination of their employees?
This article attempts to address that.
Duty to Provide a Safe Work Environment
Currently, there are no laws in Malaysia that impose an obligation on employers to ensure their employees are vaccinated.
However, there are laws, both statutes and common law, that compel employers to provide a reasonably safe and healthy work environment.
Firstly, the Prevention and Control of Infectious Diseases Act 1988 (“PCIDA”) and the Regulations made by the Minister of Health by way of the powers delegated to him through the PCIDA, together with the directions of the Director-General of Health, form the various rules, regulations, and standard operating procedures (“SOPs”) that Malaysians, employers and employees alike, have to comply with during this pandemic.
These rules and SOPs include restrictions on business operating hours, the number of employees that can be in the office, social distancing at the business premise, and so on.
They are intended to reduce the transmission of the deadly virus, and employers are reminded to comply with them strictly as a failure to do so may lead to not only a corporate liability but also a personal liability.
Secondly, under section 15 of the Occupational Health and Safety Act 1994 (“OSHA”), it is provided that “It shall be the duty of every employer and every self- employed person to ensure, so far as is practicable, the safety, health and welfare at work of all his employees.”
While there is no reported case where an employer is prosecuted under OSHA for Covid-19 related health concerns, given the generality of the Act, it is believed that the duty under OSHA to provide a safe working environment includes the duty to provide a workplace with minimal risk of exposure to the disease.
However, it must be noted that OSHA only applies to specific industries.
Other than a statutory duty, an employer is also under a contractual duty to provide a safe workplace for his employees.
In the case of Melewar Corporation Bhd v Abu Osman [1994], the Industrial Court held that an employer owes a contractual obligation to his employees to provide a safe and conducive working environment.
Lastly, several cases, including Gelau Anak Paeng V Lim Phek San & Ors [1986] have established that an employer owes a common law duty of care towards their employee to take reasonable precautions to protect his employees against danger.
Therefore, as a general principle, an employer must ensure its workplace is reasonably safe, and that would include safe from the Covid-19 virus.
That being said, in Master Brisbane Itang V. Robinson Lee & Ors [2014], the Court of Appeal held that as there is no specific legislation imposing a statutory duty or obligation on the part of the Ministry of Health to immunise school pupils against the Japanese Encephalitis (“JE”) virus, the Ministry of Health thus did not owe a duty of care to the plaintiff to ensure that he would be immunised against being infected with the JE virus.
The Court held that it would not be fair, just, and reasonable to impose a common law duty of care on the Ministry of Health to ensure that the plaintiff would be immunised against being infected with the JE virus.
As such, the plaintiff’s negligence suit against the Ministry of Health was unsuccessful.
In a similar vein, it is unlikely that an employer who fails to ensure all his employees are vaccinated can be sued for negligence. That is because a duty to provide a safe working environment may not extend to include the duty to ensure all employees are vaccinated, and more importantly, the ability to vaccinate the employees does not lie with the employer but with the health agencies.
As such, an employer is likely to have considered having fulfilled his duty in ensuring a work environment is reasonably safe when SOPs such as maintaining a social distance, prohibiting physical meetings, daily testing of temperature, and so on are practiced strictly.
That being said, certainly a workplace in which all of its members are vaccinated, would have the highest protection against the virus.
Hence, while there may not be a duty on an employer to ensure his employees are vaccinated, can an employer compel his employees to receive the vaccine?
Can Employers Compel Employees to be Vaccinated?
Generally, employees owe their employer a duty of obedience.
In Ngeow Voon Yean v Sungei Wang Plaza Sdn Bhd / Landmarks Holding Berhad [2006] the Federal Court held as follows:
“The duty of an employee at common law is also similar in that he is to comply with all lawful and reasonable orders given by his employer with respect to the performance of such functions within the scope of his employment. That duty is one of the fundamental obligations which are deemed to be impliedly undertaken in every contract of hiring. The duty of obedience at common law is subject to two qualifications, firstly that the employer may not order his employee to do something illegal or secondly order his employee to do anything dangerous.
However, it may well be that an employee is caught in the situation that he is required to obey an order and he is doubtful whether the order is legal or not. Under those circumstances, the proper course is for the employee to obey the order first and to challenge its legality in separate proceedings.
This distinction is made on the basis that if the law allows the employee to disobey any order he thinks is not legal, it would be impossible for the management to maintain discipline and industrial peace.
On the other hand, if the employee takes upon himself to disobey the order which he thinks to be unlawful and unreasonable two courses are open to him. He can point out his difficulties, if any, to the superior and if the latter insists on the order being carried out, he can do the work and take the matter further in proceedings against his employer or to complain to his union. If he disobeys, he must take the risk if the Court finds the order to be lawful and reasonable. See the case of Pan Global Textiles Berhad, Pulau Pinang v Ang Beng Teik (2002) 2 MLJ 27.”.
Thus, as stated in Ngeow, an order by an employer has to be obeyed by the employee unless the order is dangerous.
But is an order to be vaccinated an order that is dangerous?
Despite some reported cases of the vaccination causing discomfort or side effects, it is believed that the vaccines are generally safe and are far from being “dangerous”, after all, they have been tested, accepted, and distributed by many countries across the globe.
In this context then, can an employee who disobeys an order to be vaccinated be reprimanded or dismissed for insubordination?
Can an employee refuse to obey the instruction, resign, and claim for constructive dismissal citing that the Company has breached a fundamental term of his employment?
Dismissing on The Ground of Rejecting an Order to be Vaccinated
As there are no case laws in Malaysia on this point, a recent decision by the Fair Work Commission of Australia provides some guidance.
In the case of Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020], Ms. Arnold brought an unfair dismissal claim against her ex-employer Goodstart Early Learning Limited.
Goodstart had imposed mandatory influenza vaccinations for all employees with an exemption available on medical grounds. Ms. Arnold objected to the vaccination for no apparent medical reason and was thereby dismissed by Goodstart. When the matter is before the Commission, while Ms. Arnold’s claim was dismissed on technical grounds, the Deputy President briefly considered the merits of the claim and concluded as follows:
“While I do not go so far as to say that the Applicant’s case lacks merit, it is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason. Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.”
The reasoning, in this case, suggests that in certain industries, failure to comply with an employer’s order to be vaccinated could justify a disciplinary action by the employer.
Although it is accepted that an order to be vaccinated breaches a right to privacy and a right to body autonomy, it must be remembered that Covid-19 is a highly viral disease, and therefore a decision to not be vaccinated impacts not only the individual but the people around him.
Moreover, certain segments of the population are extremely vulnerable to the disease and have to be specifically protected from it, such as senior citizens, infants, and people with pre-existing medical conditions.
Therefore, workplaces that involve people from these segments, would be reasonable to require and expect, the employers and employees in those workplaces to be vaccinated to minimize the risk of exposure to the virus that may be fatal to them.
In these circumstances, an order for mandatory vaccination by an employer is likely to be reasonable, and that the refusal to obey such an order is likely to constitute just cause or excuse to dismiss the employee.
However, in other industries that do not involve people who are particularly vulnerable to the virus, a mandatory vaccination order may be regarded as disproportionate and thereby not a lawful or reasonable order by the employer. Instead, other policies such as employees are obligated to wear a mask at all times, keeping a safe distance amongst each other, team rotation, would be sufficient.
Legislature for Mandatory Vaccination
Lastly, one way that could provide certainty to employers regarding the issue, is by way of parliament passing legislation mandating vaccination.
In Victoria, the parliament passed the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic) to amend the Health Services Act 1988 (Vic) and the Ambulance Services Act 1986 (Vic) to enable the Department of Health and Human Services to direct hospitals and health service establishments to require employees to be vaccinated against specified diseases to enhance the protection of the health and safety of patients and employees.
By having legislation such as this, the doubt and uncertainty concerning an employer’s authority to compel his employees to be vaccinated are removed and claims for breach of privacy or for discrimination (i.e. for disregarding personal political / religious beliefs) will be reduced.
However, mandatory vaccination must be accompanied by awareness campaigns and education, so that the public does not view that the policy as intrusive and inhumane. Additionally, in passing such legislation, the government must make sure the vaccine is easily accessible by all communities regardless of race, religion, location, or financial background.
Conclusion
In conclusion, it is unlikely that there will be a duty imposed on employers to ensure all their employees are vaccinated. It is however uncertain whether an employer can compel his employees to be vaccinated, particularly without a parliament legislature authorizing so.
As such, employers are advised to continue to practise the existing SOPs, and when requesting their employees to be vaccinated, seek the employees’ written consent before doing so.