As the Covid-19 virus continues to spread across the nation, many businesses have been hoping that the Covid-19 vaccines will help the economy to get back on its feet and start running again. However, there’s one question that all business owners may be concerned of and it is “Can they make it compulsory for all their staff to be vaccinated?”
The retail industry is one of the most heavily impacted industries during the lockdown as the restrictions only allow businesses who are selling “essential” goods and services to operate.
This restriction had caused several issues to these business owners and one of the solution suggested by the Ministry of Domestic Trade and Consumer Affairs (KPDNHEP) is to make it mandatory for all employees in the retail sector to be vaccinated before approval is given to resume operation.
According to Malay Mail, they have spoke to several lawyers for their opinion on this matter and here are the points that you need to know if you are running a business.
1. Can employers make vaccination compulsory for employees?
There is currently no law that disallows employers to impose the mandatory vaccination policy for their company and there are no known court cases in the country about whether such a policy would be legal too.
However, there are cases in countries like Australia and United States (US), where employers had dismissed their employees for refusing to complying with the mandatory vaccination policy.
Meanwhile, a lawyer said that employers are generally able to make the mandatory vaccination policy if this is a government-imposed requirement.
However, they should be cautious where there are special circumstances, such as where an employee is unable to receive a vaccination due to a medical condition too.
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.
As for the employee to successfully in taking a legal action, the 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.
2. What if the employees refuses to be vaccinated?
A lawyer said that employers can choose to take disciplinary action against employees who refuse vaccination, and that whether such action is reasonable depends on the situation.
Meanwhile, he added that the employer cannot physically compel the staff to take the vaccine as it is their freedom of choice, the employer can impose disciplinary actions for violating the mandatory vaccination policy. However, he did mentioned that the breaches of this policy may be evaluated by the courts.
Disciplinary action including dismissal could be seen as reasonable too, after taking into consideration various factors.
On the other hand, another lawyer said that there are several options for the employer too and they include engaging with the employees, or to transfer employees to alternative roles.
He added that 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.
3. What if an employee refuses to be vaccinated due to health conditions?
Facing this situation, a lawyer said that the employers can explore measures such as redesignation.
He added that he do not think the government will make the vaccination mandatory for such staff and even if the government issued a blanket requirement, the employer should see if it’s possible to apply for an exemption for that staff, or again see if redeployment or redesignation is an option.
Lastly, he said that termination should always be the last resort and if the employer acted reasonably, the termination should be possible under the law. At the same time, he said 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.
4. Putting it into the employment contract and in writing
In this situation, a lawyer said there is currently no laws to mandate the Covid-19 vaccination for employees and this would mean that employers cannot “force” employees to be vaccinated, but only to persuade and convince the employee of the need to be vaccinated due to reasons such as the nature of the work.
He also emphasized that the vaccination is a medical procedure and it has to be done by way of consent. As for existing employees, he advise employers to obtain written consent of employees to be vaccinated and a verbal consent is not enough as the employee could later claim to have never given consent.
Meanwhile, for new employees, the employer can put it as a term of the contract, where employees must be vaccinated before they are hired for the employment, or they must undertake they will be vaccinated after they join the company.
He added that new recruits have an option of not joining the company upon viewing the terms of the contract too, 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
A lawyer said that an employee who is being forced to undergo Covid-19 vaccination can possibly walk out of the job and claims for a “constructive dismissal” by the employer.
In such cases, the employer do 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.
As such, the 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.
It would then be the Industrial Court to decide if there was constructive dismissal.
On the other hand, if new employees who have agreed to be vaccinated under the employment contract can be terminated by the employer for being non-compliant.
In the case if the employer terminates the employee for not being vaccinated, the employee can file a complaint of dismissal without just cause and excuse. The process then involves 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.
It is then 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?
There may be a stronger basis for the government to impose a compulsory vaccination requirement for certain industries.
A lawyer said that laws have been passed in response to the pandemic has 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.
However, the lawyer said that 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, there is an opportunity to open a legal challenge.
Nonetheless, he said that the government could impose mandatory vaccinations on the general population including employees by passing an Act in Parliament but he believes that implementing such a policy of forcing vaccinations would only be a “last resort.”