Issues on mandatory vaccination in the workplace
Since the launch of the National COVID-19 Immunisation Programme in February this year, the number of vaccinated individuals amongst the Malaysian population is increasing every day. People now rely on the vaccine to protect themselves and to improve the health and safety for all in the midst of the COVID-19 pandemic. Likewise, many employers and organisations would like, ideally, for all their employees to be vaccinated for the purpose of returning to business normalcy.
General obligations for employers regarding health and safety
Although there is currently no general law or regulation that compels or requires any person to be vaccinated, employers have the general duty to ensure that the safety, health and welfare of all employees are protected as far as reasonably practicable under the Occupational Safety and Health Act 1994 (“OSHA”). This includes ensuring that their employees are protected by any means necessary and available, including imposing a mandatory vaccination policy, so that the health and safety of any individual or group of employees is not compromised. This is especially so where employers require employees to be vaccinated due to the nature of their work or role which entails interaction with vulnerable people.
However, compulsory vaccination cannot be a blanket requirement which applies uniformly to all employees. Although getting vaccinated protects the workforce against risks to health and safety for the majority of employees, employers must consider that there will be employees who are unable to be vaccinated, e.g. due to pre-existing medical conditions that would negatively impact the health of the employee if they take the vaccine. Employers would need to take steps to protect the employees in this group under their OSHA obligations as well.
Consent by employees and mandatory vaccination
There are two categories of individuals who may not consent to being vaccinated, (i) where taking the vaccine would be harmful to the person, e.g. with a pre-existing medical condition; and (ii) due to personal beliefs or stance, e.g. where the individual is apprehensive because of the process in which the vaccines were developed, the lack of trust in scientific results, testing, long term effects, or knowledge of the same.
Employers should respect the decision of any employee in either category and their freedom of choice. However, employers are not restricted from requesting their employees to be vaccinated for health and safety reasons and in accordance with their duty under OSHA. Mandatory vaccination for the purpose of continuing employment in the workplace can be distinguished from forced vaccination of the person. Employers should make this position clear to employees that this does not mean that the employee is forced to be vaccinated, the employee still has the liberty to choose to consent to the vaccination procedure. However, if the employee refuses to be vaccinated, the employee may have to look for other forms of employment or roles which are safe enough for people who may be unvaccinated.
Good employment practices
So, what can employers do? We do not know for certain the legal risks that would arise if an employee is dismissed for refusing to be vaccinated, e.g. on grounds of insubordination, misconduct or otherwise. Therefore, employers should shift their focus and resources on taking practical steps to encourage vaccination of their workforce.
Incentives and education
Employers may encourage employees to get vaccinated by offering incentives, such as by providing paid leave for employees to attend their vaccination appointments and to recover from any side effects. Employers should also educate their employees on how getting vaccinated would increase the safety in the workplace, e.g. by providing training or conducting talks on vaccination.
Implement reasonable accommodations
As good practice, employers should consider reasonable accommodations for unvaccinated employees, especially where the employees have bona fide health or medical conditions. Employers should conduct risk assessments to consider viable options to be taken which are reasonable and proportionate to the risk. Employers may consider assisting these employees in seeking alternative roles within the organisation, implementing remote working measures, etc. to minimise contact with other employees.
Vaccination as a job requirement or contract term
If employers intend for new employees to be vaccinated, this may be treated as a qualification or prerequisite and employers are allowed to carry out pre-employment health screening to determine whether an employee qualifies. Employers may also require vaccination to be a condition that is agreed in the employment contract.
Employers should explain their reasons for wanting employees to be vaccinated clearly, such as by issuing a written policy which specifies the aims and steps that the organisation wishes to adopt to ensure that employees are not threatening the health and safety of others in the workplace.
Authors: Donovan Cheah (Partner) and Adelyn Fang (Legal Manager) (Donovan & Ho)
Source: This article was originally published on the Donovan & Ho website, 25 August 2021, and has been reproduced with the authors’ consent.