A VERY small number of employees in private companies have refused to be inoculated against Covid-19 but industry stakeholders warn of impending employment disputes in the absence of guidelines on the matter.

Bosses said so far, none of these employees have been sacked over their refusal to get vaccinated but they have been barred from returning to the workplace in order to protect the health and safety of other employees.

They foresee disputes arising between employers and their workers over this situation and are calling for government guidelines on handling non-vaccinated cases as inoculation is not mandatory.

Without giving a specific number, Malaysian Employers Federation (MEF) president Dr Syed Hussain Syed Husman said the number of employees in private companies who refused to get vaccinated accounted for about 3%.

“Collective responsibility of employees is to get vaccinated in order to protect co-employees, family members and the community,” Syed Hussain told The Malaysian Insight.

He said employers prefer to encourage their employees to get vaccinated through promotion campaigns, including getting health experts to personally answer employees’ questions and doubts.

This is done to ensure that the employees are not vaccinated under forced conditions, he said.

“In the absence of a legislative provision mandating vaccinations, employers are considering a more cautious policy of promoting vaccinations among employees, rather than making it mandatory,” he said.

“Firing an employee for refusal to be vaccinated should be avoided as the country has not made it mandatory for the population to be vaccinated.”

In line with this, he assured that the employers fully support the national vaccination programme and are obliged to assist the government in the promotion.

Human Resources Minister M. Saravanan has said employees who refuse the vaccine can be dealt with under the Occupational Safety and Health (OSH) Act 1994, for causing an unsafe environment at the workplace.

In response to that, MEF said employers have the responsibility to ensure the safety, health and welfare of their employees according to sections 15 and 17 of the act.

Syed Hussain said employees also have a duty to ensure the safety and health of themselves and their co-workers under section 24 of the OSH Act.

“Based on the provisions of the OSH Act, it would be reasonable for employers to request their employees to be vaccinated,” he said.

“Employees who refuse to be vaccinated without reasonable reasons may be barred from entering the workplace until he is inoculated or the government declares that Malaysia is free from Covid-19.”

He maintained that vaccination is the only way available for the population to be given immunity and be protected from Covid-19 infections.

“Even people who are fully vaccinated are at risk of infection, but their situation is less serious than those who have not been vaccinated,” he said.

Syed Hussain also suggested that the government come up with guidelines for employers and employees to avoid labour disputes arising from the situation.

“Such guidelines will minimise disputes between employers and employees or trade unions on matters related to vaccination of employees,” he said.

“There are already instances where employees are claiming of being constructively dismissed as employers barred unvaccinated employees from entering the workplace. Such matters are still unresolved.”

Guidelines needed

SME Association of Malaysia president Michael Kang said employees who refused to be vaccinated will not be directly laid off at this stage as time has been given to them to consider vaccination.

He agreed that employees who have not been vaccinated cannot return to work currently based on workplace safety and fears of endangering the health of other employees.

“Employers are responsible not only for employees who refuse to be vaccinated but also for the health of other employees… and about how it would affect the company’s productivity,” he said.

Kang said employers can enforce the OSH Act but disputes between labour and management may increase in the future, which is inevitable.

Despite this, he acknowledged that there are not many who are unwilling to get vaccinated.

Lawyer Gan Peng Sieu said to avoid industrial disputes, companies could discuss new regulations with their employees.

He said companies could draft a new policy and set out in detail the actions that employers can take if employees refused to be vaccinated against Covid-19.

“As the OSH Act fails to clarify that employees who refuse to be vaccinated can be laid off, employers cannot fire them for this reason,” he said.

“Therefore, employers and business owners must introduce their own policies.

“The company must clarify under what circumstances employees are encouraged to be vaccinated, and under what circumstances employees who refuse to be vaccinated can be dismissed.”

Gan said the new regulations must be communicated to employees before they can be implemented.

And this cannot be forced upon those who cannot be vaccinated due to health reasons, he said.

Once the employer has completed the above steps and the new regulations become effective, the employer can win the case if employees choose to sue the employer in future, he said.

“Of course, we can accept the suggestion by the health minister, that if we are not willing to be vaccinated, we must be screened every week before we can return to work.” he said.

“Then, the cost of screening must be clearly stated whether the employer or the worker bears it.”

Gan said the government should introduce guidelines on vaccination requirement for employers and employees in various industries, such as confinement centres, nursing homes and kindergartens.

“Since young children cannot be vaccinated, employees in this sector must be vaccinated,” he said.

“In addition to being responsible to employees, employers and companies must be responsible to their customers.

“Just as customers can choose whether to dine in restaurants where their employees are fully vaccinated, their health and safety must be protected.” – September 14, 2021.