NO JAB, NO JOB?

It has been one (1) year and three (3) months since our lives have been temporarily

upended by the outbreak of the Covid-19 pandemic. I think we can all agree that this Covid-

19 has made a lasting impact on our daily lives be it from an economic, social and personal

standpoint. One of the major changes, white and blue collars workers everywhere have to

adopt and adapt is the implementation of the Work from Home concept (WFH).

With that being said, there is a silver lining to seeing this pandemic to an end and that is

vaccinating the population. Therefore, our government has since begun to ramp up the

vaccination rates to achieve herd immunity. With this purpose in mind, our lives can revert to

a sense of normalcy, and we will be allowed to work in the office, have social gatherings and

students can finally enjoy the school life which they are missing out on.

All of this can only be achieved if EVERYONE is vaccinated. Truth be told, many businesses

have suffered severe losses to the point where some businesses are forced to shut down

especially during the movement control order being implemented in combating the spread of

Covid-19. Many of these businesses are small owned whereas large organisations are

forced to downsize and proceed with retrenchment. Family and businesses whose income

depends on daily sales would also carry the burden of providing jobs to the populace as well

as providing food on the table for their loved ones.

That is why it is imperative that the population get themselves vaccinated but what happens

to those who refused to give their cooperation to be vaccinated? What then can the

employers do? To prevent the fuss of the question “are you vaccinated” being asked during

job interviews and when filling out a form for job interviews in the future which we think is

plausible if vaccination is not made mandatory by the government.

Recently, we have been getting many enquiries from our clients mainly on how can I get my

employees to register to be vaccinated? and What happens when he/she refuse to be

vaccinated?

To begin with, all employers must first know and understand that an employer owes a

statutory duty of care towards his/her employees to ensure that his/her employees would be

working in a safe environment which is prescribed under Section 15 of the Occupational

Safety and Health Act 1994 which states as follows:-

General duties of employers and self-employed persons to their employees.

(1) It shall be the duty of every employer and every self-employed person to ensure, so far

as is practicable, the safety, health and welfare at work of all his employees.

(2) Without prejudice to the generality of subsection (1), the matters to which the duty

extends include in particular-

(a) the provision and maintenance of plant and systems of work that are, so far as is

practicable, safe and without risks to health;

(b) the making of arrangements for ensuring, so far as is practicable, safety and absence of

risks to health in connection with the use or operation, handling, storage and transport of

plant and substances;

(c) the provision of such information, instruction training and supervision as is necessary to

ensure, so far as is practicable, the safety and health at work of his employees;

(d) so far as is practicable, as regards any place of work under the control of the

employer or self-employed person, the maintenance of it in a condition that is safe

and without risks to health and the provision and maintenance of the means of access

to and egress from it that are safe and without such risks;

(e) the provision and maintenance of a working environment for his employees that is,

so far as is practicable, safe, without risks to health, and adequate as regards

facilities for their welfare at work.

Section 15 lays down the statutory duty of an employer and it must also be read together

with Section 16 of the Occupational Safety and Health Act 1994:-

Duty to formulate safety and health policy

Except in such cases as may be prescribed, it is the duty of every employer and every self-

employed person to prepare and as often as may be appropriate revise a written

statement of his general policy with respect to the safety and health at work of his

employees and the organisation and arrangements for the time being in force for

carrying out that policy, and to bring the statement and any revision of it to the notice

of all of his employees.

With that being said, employers can from time to time amend their general safety and health

policy to include the notion that all employees MUST be vaccinated to adequately discharge

his/her statutory duties as prescribed by the Occupational Health and Safety Act 1994.

Although, this rule is not spelt out however we can foresee that this requirement will be

gradually imposed in many organisations once the momentum of implanting such rules take

root. While it is also true that before we can be vaccinated, we have to give our consent to

the government but at the same time, the employers also owe a statutory duty of care to

their employees to formulate safety and health policies at their organisation to ensure safe

working environment.

Employees’ Duties at Work

Just like the employers, the employees also owe a duty of care while at work. This is

prescribed under Section 24 of the Occupational Health and Safety Act 1994 which

states as follows:-

General duties of employees at work

(1) It shall be the duty of every employee while at work-

(a) to take reasonable care for the safety and health of himself and of other persons

who may be affected by his acts or omissions at work;

(b) to co-operate with his employer or any other person in the discharge of any duty

or requirement imposed on the employer or that other person by this Act or any

regulation made thereunder;

(c) to wear or use at all times any protective equipment or clothing provided by the employer

for the purpose of preventing risks to his safety and health; and

(d) to comply with any instruction or measure on occupational safety and health

instituted by his employer or any other person by or under this Act or any regulation

made thereunder.

(2) A person who contravenes the provisions of this section shall be guilty of an offence

and shall, on conviction, be liable to a fine not-exceeding one thousand ringgit or to

imprisonment for a term not exceeding three months or to both.

In summary, all employees are required to take reasonable care, to provide cooperation and

to comply with the employer’s instruction or measure on occupational safety and health

introduced by the employer and/or any other person, failing which, the employee shall be

guilty of an offence which he/she could be liable to a fine not exceeding RM1,000.00 or

imprisonment for a term not exceeding 3 months or both.

Therefore, employees also have their duties to discharge in the organisation.

Meanwhile, to give you an example of how some organisations have taken their steps to

ensure a safe working environment is provided for their employees in their organisations, we

hereby quote The Edge:-

"Cathay Pacific Airways Ltd said on Thursday that all Hong Kong-based pilots and

flight attendants would need to be vaccinated against Covid-19 by Aug 31 or risk

losing their job, in one of the airline industry's toughest policies" 1

”The Edge Media Group is giving RM1,000 bonus to staff who are fully vaccinated

against Covid-19”2

On a final note, law and policies will continue to evolve in no time to combat against Covid-

19. This 1 year and 3 months have somehow taught us that, once the impossible will soon become possible in no time, ain’t it?

By Wong Shiuann Yih, Anna

Note: This article does not constitute legal advice to any specific case. The facts and

circumstances of each and every case will differ and therefore will require specific legal

advice. Contact us at 03-77339922 or office@lawsywong.com if you have any queries.