The Malaysian government recently announced that only fully inoculated individuals may participate in activities involving social interaction (such as dining out). Following this, it is very possible that being fully vaccinated may become a precondition for employees to be involved in certain industry sectors in the near future.
Commitment by employers to vaccinate and encourage vaccination of their workforce would aid in the process of economic recovery. This article sets out some issues that employers should consider if they are planning to implement a mandatory vaccination policy.
1. Risk assessment
As a starting point, employers should carry out an assessment on the risks, costs and benefits involved in making vaccination mandatory for their employees. Employers should take into consideration specific factors, such as the employer’s specific nature of business, industry sector, day-to-day operations, organisation core values, job scope of employees and resources to determine the level of compliance that should be imposed on employees.
For instance, an employer’s business that regularly deals with high risk individuals (eg: nursing home, healthcare services, etc) would reasonably need to mandate a more stringent policy to ensure that their workforce is vaccinated.
Other employers who are able to perform their business activities remotely or online may not need to make vaccination mandatory, but can phrase their policy in a more voluntary manner. This can be done through encouragement and incentives.
There is no set rule on how to form a mandatory (or voluntary) vaccination policy, and employers would know best how to manage their business and employees.
2. Reason for the policy
Always start with “Why?”. The principles embodied in a mandatory vaccination policy should be in line with the employer’s aims and goals for achieving a fully vaccinated workforce. Generally, this would be for health and safety purposes as all employers have a duty to create a safe working environment not just for their employees but for every person with whom the employee interacts with.
Employers should highlight the importance of vaccination and explain their reasons for wanting their workforce to be vaccinated. Employers may also take a stand to abide by any present or future initiatives, policies, guidance or laws which may be set by government agencies or authorities to regulate specific business activities and industries.
What happens if an employee chooses not to be vaccinated? Consequences must be spelt out clearly. For example, unvaccinated employees could be subject to more stringent testing requirements such as having to undergo regular COVID-19 swab tests. Unvaccinated employees may also be prevented from attending company events, or being present in the workplace, or be subject to different work schedules and rotations. It is advisable for all these consequences to be set out in writing, so employees can make an informed decision about vaccination. However, employers should also bear in mind that some employees may have legitimate reasons to refuse vaccinations (eg: health conditions) and should accommodate this fairly and reasonably (see below).
4. Accommodate different groups of employees
Employers may have employees who have to refuse to be vaccinated due to medical or health conditions. Employers should first understand the employees’ reason for refusal, and then assess whether an exemption from complying with the mandatory policy should be granted. An employer can then consider reasonable accommodations (eg: requiring the employee to work from home, or asking the employee to consider an alternative role which has no physical interaction with others).
5. Incentives and resources
Employers may set out incentives that they are willing to offer to employees to get vaccinated. For example, employers may offer paid time off for the employee to attend their vaccination appointment and to recover from any side effects. Employees may also be directed to resources which would help educate employees on the importance of getting vaccinated and help them make an informed decision.
6. Compliance with the law
As the laws surrounding compulsory vaccination are still developing, employers may need to update, modify or amend their policy in accordance with any laws, regulations, guidelines or recommendations that are made by the authorities in the future.
As the vaccination status of employees relates to their physical or mental health or condition, employers should ensure that they are handling such data with the consent of employees in compliance with personal data protection laws.
Authors: Donovan Cheah (Partner) and Adelyn Fang (Legal Manager) (Donovan & Ho)
Source: This article was originally published on the Donovan & Ho website, 9 September 2021, and has been reproduced with the authors’ consent.