WITH the first phase of the National Covid-19 Immunisation Programme moving forward as scheduled, and the reopening of various economic sectors subject to strict standard operating procedures, corporations will now have to consider, especially from an employment law perspective, whether their employees must get the Covid-19 vaccine before they are allowed to return to the workplace. In essence, this consideration stems from the absence of any legislation compelling employers to ensure their employees are vaccinated.
The duty to provide a safe system of work vs the employee autonomy
The duty to provide a safe system of work is codified under section 1(1) of the Occupational Health and Safety Act 1994 (OSHA 1994) which imposes a duty on employers to ensure the safety, health and welfare of their employees.
Consequently, employers must now contemplate the importance of introducing policies and tackling the issue of whether they will compel their employees to be vaccinated. Alternatively, employers may need to consider whether it would suffice to only compel employees within a certain category or job description to get vaccinated.
It is imperative when evaluating this, that employers should ensure it is not a one-sided decision and to take into account their employees’ feedback on this matter. This is particularly important as not every employee will react positively to the idea of vaccination (even if funded by their employers) following concerns about adverse medical reactions to the Covid-19 vaccine.
Would an employer be able to justify compulsory vaccination?
At a press conference in January, Science, Technology and Innovation Minister Khairy Jamaluddin stressed that the government has no plans to make the Covid-19 vaccine compulsory. Therefore, while employers are generally not encouraged to compel their employees to get vaccinated, there may be justifiable exceptional circumstances requiring compulsory vaccinations.
Healthcare workers or frontliners who are at higher risk may fall within the category of employees requiring compulsory vaccination, given their daily exposure to Covid-19 patients. By doing this, it may not only provide a safety net for the frontliners themselves, but also for patients who receive treatment at the hospitals.
The ease of transmission of the Covid-19 virus between healthcare workers and their patients can be seen in the two clusters identified in Hospital Tengku Ampuan Rahimah, Klang – the Batu Sembilan Cluster and the Yayasan Cluster, which affected 62 medical staff and 81 patients.
Another category of employees most likely to be compelled to be vaccinated before they are allowed to commence work would be the foreign employees and expatriates from high-risk countries.
What if an employee refuses to be vaccinated?
The refusal to be vaccinated is unlikely to amount to just cause for termination. One may argue that the cause for termination is intertwined with the nature of employment; however, termination on such grounds would arguably be seen as an extreme measure, given that countries like Australia, Singapore and the US are not making the Covid-19 vaccination compulsory.
In January, the case of an in-home care worker in Australia who lost her job after refusing to take the Covid-19 vaccine (as compelled by her employer’s vaccination policy) was heard before the Australian Fair Work Commission. The employee argued that the requirement was unreasonable given the anaphylactic reaction she previously had to a flu shot she received as a child. In considering the reason for her refusal, the Commission ruled that the care worker had a basis to argue that she had been unfairly dismissed by her employer.
While this is an Australian decision by the Commission, it could set the tone on how courts may treat cases where employees who refuse to be vaccinated are dismissed. In light of this, while employees in the healthcare industry are more likely to be compelled to receive vaccination as a condition of employment, there could be exceptions to this rule, especially when it comes to employees who may be likely to exhibit adverse reactions to the Covid-19 vaccine.
Ultimately, the duty would remain with the employer to mitigate the risk of potential transmission of the Covid-19 virus at the workplace despite the vaccine.
Conclusion
With the Covid-19 virus disrupting our lives and businesses at unprecedented levels, the development of Covid-19 vaccines has been positively received by many, in the hope of being able to return to our pre-pandemic lives.
However, the emergence of Covid-19 vaccines comes with its own set of legal and other challenges, especially from the employment law perspective. Therefore, employers ought to be mindful of the various legal considerations and repercussions when it comes to formulating employee-centred policies relating to the Covid-19 vaccine.
Given the likelihood of various novel legal issues arising following the rollout of the Covid-19 vaccines, employers should consider the legal position carefully, and seek legal advice before formulating these policies.
This article was contributed by Michelle Lim from Christopher & Lee Ong.
Source: The Sun Daily
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