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

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 “essential” goods and services were allowed to open, with shopping malls and retailers previously stressing their desire to ramp up vaccination of their staff.

On July 28, the Ministry of Domestic Trade and Consumer Affairs (KPDNHEP or MDTCA) was reported to be in the final phase of making COVID-19 vaccination of all employees in the retail sector as a pre-condition for companies to be given approval to resume operations during the National Recovery Plan, especially for economic activities requiring face-to-face interaction.

Malay Mail spoke to several employment lawyers about whether employers can mandate that their employees be vaccinated, and whether employees can refuse and what employers can do if that happens. Here’s what you need to know: 

1. Can employers make vaccination compulsory for employees?

Employment lawyer Donovan Cheah said there is no law now that disallows mandatory vaccination policies by employers, and that there are no known court cases in the country about whether such a policy would be legal.

“Given the severity of the pandemic, having a mandatory vaccination policy is one of the ways for employers to safeguard the safety and health of their employees and curb the spread of COVID-19. 

“However, there are no reported court cases in Malaysia about the legality of mandatory vaccination policies, and whether an employer can take disciplinary action against an employee for refusing to vaccinate,” he said, but noted there have been reported cases in countries like Australia and the US which upheld the dismissal of employees who refuse to comply with their employer’s mandatory vaccination policy.

Specialist employment lawyer Marcus van Geyzel said employers would generally be able to make it compulsory for their employees to undergo COVID-19 vaccination if this is due to a government-imposed requirement.

“Yes, if the MDTCA/KPDNHEP makes employee vaccinations mandatory or a pre-condition for approval to operate, the affected employers can impose this requirement on employees,” he told Malay Mail.

“However, employers should be cautious where there are special circumstances, such as where an employee is unable to receive a vaccination due to a medical condition,” he added.

“In general, it would be very unlikely for an employee to successfully challenge an employer’s mandatory vaccination policy where vaccinations have been declared a pre-condition for operations by the government. 

In order to bring a successful legal action, an employee would have to show that in mandating vaccination, the employer has exercised its managerial power in a non-genuine manner, or that there was victimisation or an unfair labour practice,” he said.

2. What if the employees say no to vaccination?

Cheah said employers can choose to take disciplinary action against employees who refuse vaccination, and that whether such action is reasonable depends on the situation.

“While an employer cannot physically compel an employee to take the vaccine, an employee’s freedom of choice is not the same thing as freedom from consequences. There are no legal prohibitions against an employer implementing a mandatory vaccination policy, although how employers deal with breaches of this policy may be evaluated by the courts,” he said.

Cheah said disciplinary action including dismissal may be seen as reasonable, taking into account various factors.

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.

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. 

“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. 

“Termination should always be a last resort, but if the employer has acted reasonably, then termination should be possible under the law,” he said, also saying that an employee would be unlikely to succeed in an unfair dismissal claim if an employer treated the employee fairly and could show that the termination was reasonable in the circumstances.

For employees with pre-existing health conditions that prevent them from being vaccinated, employment lawyer Jayasingam Poopalasingam said employers can seek to take mitigation measures such as changing their work roles or have them work remotely.

However, if the nature of the business and nature of the employee’s work requires vaccination, but vaccination is not possible due to the health condition and mitigating measures are not feasible through no fault of both the employer or the employee, the employer may be left with no choice but to terminate employment.

The employee could under such circumstances file a complaint to claim that the dismissal was without just cause and excuse, but it would ultimately be for the Industrial Court to decide if the dismissal was with just cause and excuse, he said.

4. Putting it into the employment contract and putting it in writing

Jayasingam, who is also co-chair of the Bar Council’s Industrial and Employment Law Committee, similarly said there are currently no laws that mandate COVID-19 vaccination for employees.

This means that for existing employees, an employer cannot “force” them to be vaccinated, but can only seek to persuade and convince the employee of the need to be vaccinated due to reasons such as the nature of the work.

“There’s nothing much you can do, you cannot force the employee to go for vaccination, you cannot force an employee to undergo a medical procedure, it has to be by way of consent,” he said.

“If they are existing employees, it must be by way of consent. They have a right to refuse vaccination, that’s why we advise employers to obtain the written consent of employees to be vaccinated,” he said, explaining that a mere verbal consent is not advisable as an employee could later claim to have never given consent.

For employees who pose a high risk due to the nature of their job as a frontliner or being in contact with others but refuse vaccination, employers can transfer them to another position where they do not deal with customers or other employees, he said.

But for new employees, an employer can make being vaccinated against COVID-19 a part of the employment contract prior to them joining the company, he said.

“You cannot force it but what you can do is if you are having new employees, you can put it as a term of the contract, where they must be vaccinated before they are hired for employment, or they must undertake they will be vaccinated after they join you,” he said.

He added that the new recruit would have the option of not joining the company upon viewing the contract, while employers can terminate employment if the new hire subsequently does not comply with instructions to be vaccinated as promised under the contract.

5. About legal action 

If an employer forces an employee to undergo COVID-19 vaccination, the employee can possibly walk out of the job and try to claim “constructive dismissal”, Jayasingam said.

In cases of constructive dismissal claims, the employer does not have to issue a letter of termination, but the employee is essentially claiming that the employer has done something in breach of his contractual rights and that the employer’s conduct had resulted in the employee’s resignation.

Such an employee could then seek to prove their case in the Industrial Court to claim for monetary compensation and reinstatement to the job with all previous benefits and rights unaffected, including the right to not be forced to be vaccinated, Jayasingam said. It would ultimately be for the Industrial Court to decide if there was constructive dismissal.

Alternatively, employees can also file a claim in civil courts but this is usually not preferred as the compensation is very small, with most employees likely to go to the Industrial Court instead, he said.

Unlike new employees who have agreed to being vaccinated under the employment contract and can be terminated for non-compliance, Jayasingam said employers could face labour complaints by existing employees if the latter are terminated over their non-vaccinated status.

“If the employer terminates them for not being vaccinated, the employee can file a complaint of dismissal without just cause and excuse,” he said, explaining the process as involving employees filing complaints with the Industrial Relations Department under the Human Resources Ministry within 60 days of dismissal to see whether it could be resolved amicably, with the matter to be referred by the department director-general to the Industrial Court if it cannot be resolved.

But in situations where it is a government requirement for staff to be vaccinated in order to operate, an employer may have reason to terminate an employee who refuses to get vaccinated if it affects the business, Jayasingam said.

“So the employer may have just cause and excuse to terminate the employee because he cannot carry on business,” he said.

Jayasingam gave a hypothetical example, where an employee who works as a carer at a nursing home refuses to be vaccinated when it is a government requirement for such work, and the carer may as a result pose a risk to the elderly persons at the nursing home.

In such a situation and where there are no mitigation measures possible, the employer — who is unable to force the employee to be vaccinated — may opt to terminate the employee as it affects the business or may result in the nursing home having to be closed.

“It’s for the Industrial Court to decide whether what the employer did was reasonable or not,” he said.

6. Can the government make COVID-19 vaccination mandatory for employees?

Van Geyzel said there may be a stronger basis for a compulsory vaccination requirement by the government for certain industries.

“The laws that have been passed in response to the pandemic grant the government very broad powers to impose SOPs or pre-conditions for businesses to operate, and when it comes to roles or industries that have clear and frequent face-to-face contact and interaction with the general public, there is a stronger justification for the authorities to impose mandatory vaccination requirements. This is especially so as vaccinations are widely available and accessible. 

“However, if the government overreaches and tries to impose mandatory vaccinations on other roles or industries where there is no clear face-to-face interaction or risk, I could see this being open to legal challenge,” he said.

Jayasingam said the government could impose mandatory vaccinations on the general population including employees by passing an Act in Parliament, but believes that implementing such a policy of forcing vaccinations would only be a “last resort.” — Malay Mail