Concerns over mental health have become prevalent in light of the Covid-19 pandemic. Over the course of the past few months, numerous news articles have revealed that many people have been struggling with their mental health, and some have turned to taking drastic actions in response to such struggles. It is undeniable that these concerns arise following concerns over health and safety, the worsening Covid-19 situation, having to be confined to a space during lockdown in isolation, stressing over financial problems, and work performance coupled with the fear of losing jobs. Moreover, the ‘new normal’ of practising physical distancing is at odds with the very nature of human beings as social creatures, in that it only adds to the daily challenges of people who experience these struggles.
As these struggles cannot be recognised as purely ’work-related’, this gives rise to a few questions: Do employers play a role in mental health and well-being of their employees in general? Do employers owe a duty of care to their employees with respect to their mental health and well-being, particularly in light of the rise in concerns over mental health and well-being? This article seeks to discuss the position of Malaysian law with regard to mental health and whether employers can be liable in respect of their employees’ mental health.
DUTY OF CARE
Duty of Care Under Occupational Safety and Health Act 1994 (“OSHA 1994”)
Under Section 15 of OSHA 1994, employers owe a duty to ensure, so far as is practicable, the safety, health, and welfare at work of all of their employees. If found guilty under OSHA 1994, an employer may be liable to a fine of up to RM50,000.00 and/or imprisonment of up to 2 years. However, OSHA 1994 only applies to specific industries, including the following:
2. Mining and Quarrying
4. Agriculture, Forestry and Fishing
5. Utilities: (a) Electricity; (b) Gas; (c) Water; and (d) Sanitary Services
6. Transport, Storage and Communication
7. Wholesale and Retail Trades
8. Hotels and Restaurants
9. Finance, Insurance, Real Estate and Business Services
10. Public Services and Statutory Authorities
Most businesses may fall under the “Business Services” category which encompasses the occupation, work, or trade in which a person is engaged in commercial, industrial, or professional dealings, as well as the buying and selling of goods or services. This includes any commercial establishment such as a shop or factory.
On one hand, OSHA 1994 seemingly places focus on the physical aspects of safety by requiring employers to ensure that employees work in a safe and secure work environment and does not specifically emphasise on employees’ mental health. However, in the “Guidelines on OSHA 1994” (“Guidelines”) issued by the Department of Safety and Health (“DOSH”), when defining the objects of OSHA 1994, namely “safety, health and welfare”, the Guidelines have defined health as “a state of complete physical, mental and social well-being and not merely the absence of disease”. The Guidelines also further clarifies that “working environment” may include “the workplace itself; all plants at the workplace; the physical environment and the psychological environment”. It is therefore arguable that an employer’s duty of care under OSHA 1994 extends to the mental health of its employees, but this duty extends only so far as it is “practicable” to do so. Under OSHA 1994, “practicable” is interpreted circumstantially, and is defined as having regard to:
(i) the severity of the hazard or risk in question;
(ii) the state of knowledge about the hazard or risk and any way of removing or mitigating the hazard or risk;
(iii) the availability and suitability of ways to remove or mitigate the hazard or risk; and
(iv).the costs of removing or mitigating the hazard or risk.
In the case of Jabatan Kesihatan Dan Keselamatan Pekerjaan v Sri Kamusan Sdn Bhd  MLJU 1549 (“Sri Kamusan”), the Court determined that the elements of the offence under Section 15 OSHA 1994 are as follows:
(i) the offender was an employer of the concerned employee at the material time;
(ii) the employee was exposed to risk to health and safety;
(iii) the employee was at work at that material time; and
(iv) there is a causal nexus between the employer’s breach and the risk to the employee's safety.
The Court further determined that while Section 15 highlights that the duty of the employer is to ensure the safety, health and welfare at work for his employees, this would only be applicable while the employees are at work, and not when they are not working. This case therefore establishes that for liability under OSHA 1994 to arise, the activity in question which resulted in a risk to the employee’s safety must be one that can be described as part of the employer’s undertaking.
In addition, the Court in Sri Kamusan also acknowledged that the Court must consider whether the accused had exercised due diligence or taken reasonable precaution to prevent the breach, based on the particular circumstances of the matter. Section 55 OSHA 1994 provides that "It shall be a defence in any proceeding against a person for an offence under this Act or any regulation made thereunder to satisfy to the Court that the offence was committed without his consent or connivance and that he had exercised all such due diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his functions in that capacity and to all the circumstances".
Accordingly, it is advisable for employers to take steps to show that “reasonable” and “practicable” measures have been taken to avail themselves of liability under OSHA 1994 in the event that an action is brought against the employer. Whether measures are “reasonable” and “practicable” would depend on each particular circumstance and there is no objective standard for the same.
Duty of Care Under Common Law
Currently, there is no specific common law duty of care owed by employers to their employees to oversee the well-being of an employee’s mental health and there is no tort under Malaysian law for negligent infliction of mental suffering or intentional infliction of mental suffering.
However, notwithstanding the above, if an employee files a suit against an employer in respect of a mental health-related issues suffered by the employee premised on negligence, in order for the employer to be liable for negligence, the following elements must be satisfied:
- Duty: there exists a duty of care by the employer towards the employee;
- Breach of duty: the conduct of the employer fell below the standard of care which a “reasonable person” would expect;
- Causation: the conduct of the employer directly caused damage to the employee and is not too remote a consequence of the breach; and
- Damage: the breach must have caused damage to the employee in respect of which the Court is able to order compensation for the employee.
If the elements above can be proven, an employer may potentially be found liable for an employee’s mental health-related issues. However, it may prove challenging to establish the above elements, particularly as sufficient evidence would be required to show that the disruption of the employee’s mental well-being arose from a breach of the employer’s duty of care. Furthermore, it is unlikely that the Courts would establish such a duty of care in the employment context due to policy considerations and interference with the settled principles of employment law. While no Malaysian cases exist on this point, the Canadian Court of Appeal in the case of Piresferreira v Ayotte  1 ILJ 153 (which may have persuasive effect in the Malaysian context) took the position that policy considerations foreclosed the recognition of such a duty of care.
It is pertinent to note that the position of the law on liability of employers in relation to the mental health of their employees in Malaysia remains unclear, and it remains to be seen whether the legislature will introduce changes to the law and/or whether the Courts will decide on a case that touches upon mental health in the workplace, in light of the Covid-19 pandemic. Nevertheless, within the context of the on-going pandemic, employers should take “reasonable” and “practicable” steps to avoid incurring potential liability, particularly under OSHA 1994. Examples of such steps may include implementing education and awareness programmes on mental health and well-being, encouraging employees to discuss any potential mental health-related issues they may be facing with the employer or their friends and family, encouraging employees to seek professional help and being supportive of employees who are receiving professional help for mental health-related issues.
This difficult period serves as an important reminder that mental well-being is as valuable as physical well-being, particularly in light of the host of mental and physical stressors which many are facing as a result of the Covid-19 pandemic. Both employers and employees therefore ought to be cognisant of the indirect effects which these unprecedented times are having on the mental health of working individuals, and employers may need to take additional measures to ensure the health and safety of their employees, so far as it may be practicable to do so, in pursuance of maintaining a physically and mentally sound workforce which is capable of pushing through the rigours of the Covid-19 pandemic.