Malaysians are currently bracing for a new phase of the COVID-19 pandemic and the government is stepping up efforts to encourage Malaysians to be vaccinated in phases. Efforts have been made by the government to secure adequate doses of vaccination with the aim of achieving herd immunity. Most frontliners have already been vaccinated since early 2021 and the government is now gearing towards subsequent phases of the vaccination programme. This is expected to continue over the next few months.
Notwithstanding these efforts, the government has commented that registration by members of the public to volunteer for vaccination is still low (as compared to other developed countries) and there have been suggestions to review the current vaccination programme in order to achieve the government’s aim. The FAQs below serve as a brief guide for employers to better understand the current vaccination framework in Malaysia from an employment law perspective.
1. What are the current priorities for distribution of and access to the COVID-19 vaccine, and have the priorities changed since the vaccine first became available?
Priority vaccination is given to frontliners, including healthcare personnel, police personnel and those who are of old age. The next in line would be persons with pre-existing health conditions. There has not been any change to priorities since vaccination became available.
3. Will the vaccine be paid for by the applicable jurisdiction?
The cost of vaccination will be borne by the Malaysian government up to a limited period to be determined in due course.
3. Is there any legislation mandating or prohibiting mandatory vaccinations for COVID-19?
4. Is the vaccine currently mandated in certain specific industries?
At this juncture, the vaccine is not currently mandated in any specific industry.
5. Can an employer require its current employees to be vaccinated?
An employer cannot require its current employees to be vaccinated unless this is contractually or voluntarily agreed upon.
6. During the recruitment process, can employers ask job applicants if they have been vaccinated?
Yes, they can ask job applicants if they have been vaccinated.
7. Can an employer require job applicants to be vaccinated or require proof of being vaccinated as a condition of employment?
There is no legal restriction against such a practice.
8. Is there legal protection for applicants to be excused from being vaccinated due to religious reasons or disability?
As vaccination is not mandatory, applicants may be excused from being vaccinated due to religious reasons or disability.
9. If vaccinations are required, are employees entitled to reimbursement for the cost of the vaccination?
10. Are employees required to be compensated for the time spent being vaccinated, whether it occurs during regular working hours or during non-working time?
11. Are there any other legal risks to consider in requiring employee vaccinations?
The Occupational Safety and Health Act requires employers to ensure the safety and health of their workers. However, if an employee is forced by the employer to get vaccinated and suffers death or adverse reaction, then the employer is arguably in breach of the very same law.
12. Can an employer provide any type of financial inducements for employees to be vaccinated based on its employee benefits plans (e.g., wellness programs) or compensation programs (such as a bonus or paid time off)?
Yes, there is no restriction against this.
13. For workplaces where there is collective representation, are employers obligated to bargain with the union prior to mandating employee vaccinations?
This will depend on the terms of the existing collective bargaining agreement entered into by the employers and the trade unions.
14. Is the fact that an employee has or has not been vaccinated considered health information or sensitive personal data under Malaysia's data protection law?
It is considered as sensitive personal data under Malaysia's data protection law.
15. If so, is this health information subject to the restrictions on processing of personal data that are applicable to “special categories of personal data” or “sensitive personal data”?
Yes, the explicit consent of the data subject is required for processing of such personal data.
16. Can the employer maintain a record of those who have been vaccinated?
Yes, the employer can maintain a record of vaccinated employees, but this is subject to privacy consent.
17. Is an employer required to maintain a record of an employee’s COVID-19 vaccination?
An employer is not required to maintain this record at this juncture.
18. If an employee is vaccinated at the employer’s directive, is the employer required to notify the government health authorities of the employee’s vaccination?
The employer is not required to notify the government at this juncture. The vaccination program and initiative are currently driven by the government itself. Therefore, records are kept by the government and health authorities.
19. Can an employer propose a teleworking (work from home) arrangement if an employee cannot or will not agree to be vaccinated?
Yes, this is allowed. However, all the express and implied terms of employment of the employee will continue to apply.
20. Are there any additional comments regarding vaccinations that may clarify how this is being approached by employers in Malaysia?
There have been proposals by certain employers in high-risk industries in the private sector includingthe aviation sector which encourage employees to be vaccinated to enable them to perform their jobs effectively.
Most employers in Malaysia are, however, merely guided by governmental policies.