On 20 October 2020, the government announced a “Work From Home” directive (“WFH Directive”) which required certain employees in areas under the Conditional Movement Control Order (“CMCO”) to work from home effective 22 October 2020 until the end of the CMCO. This announcement caused considerable confusion to the public as conflicting statements were issued which provided little clarity on who is affected and the conditions of the WFH Directive.

The National Security Council (“NSC”) and the Ministry of International Trade and Industry (“MITI”) have since provided further clarification on the WFH Directive. MITI’s FAQ can be downloaded here.

We have set out below some common questions we have been receiving about the WFH Directive. Information provided below is updated only as of the date of this article.


Who is supposed to work from home?

For the duration of the CMCO, employees who are in management or supervisory positions are required to work from home. All other employees (for example, operational staff) may attend work like normal.

However, the WFH Directive does not apply to:

  • Sectors classified as “informal” – sundries/groceries, food and beverage, agriculture, plantation, hawker stalls, restaurants, food courts, etc. which are allowed to operate under the usual CMCO standard operating procedure;
  • transportation and delivery service sectors; and
  • civil servants providing essential/critical services, and other sectors like restaurants, retail, plantation, agriculture etc.)

Are there any exceptions for management or supervisory employees?

A maximum of 10% of employees in management or supervisory positions who have roles in accounting, finance, administration, legal, planning and information communication technology roles are allowed to work in the office.

The maximum percentage is based on the number of employees in management or supervisory positions, not on the overall workforce of the company. For example, if a company has 100 operation staff and 10 management staff, this company is allowed to only have 1 management staff attend office during the CMCO period.

However, the working hours for these employees are limited to 10 am to 2 pm, 3 days a week.

What is the definition of management or supervisory employee?

This is up to the employer to decide.

What about businesses who have less than 10 management employees?

Unfortunately, at the time of writing of this article, there is no clarification as to whether these businesses are allowed to have at least 1 management employee attend office.

Do businesses need to submit any application to MITI or other authorities if they intend to have management or supervisory employees attend work?

No. No applications are required. However, employers should issue a letter of confirmation/authorisation to their management/supervisory employees to allow them to attend the office during the CMCO period.

Do employees need to be paid their full salary while they are working from home under the WFH Directive?

Yes. Any reduction in salary or unpaid leave should be done with the employee’s consent.

Do employees need to get a COVID-19 swab attending work?

Only foreign workers in the construction industry and foreign security guards are required to undergo a COVID-19 test before attending work.

All employees from the declared red zones who are symptomatic, are also required to get a COVID-19 test before attending work.

My employee refuses to come to work, and insists on working from home. What can I do?

An employee who refuses to comply with an employer’s lawful instruction is insubordinate, and disciplinary action may be taken against them. However, before taking any action, you should first confirm whether the employee is required to work from home under the WFH Directive, or whether they fall under any exception which allows you to instruct that they attend work.

 

NB: This article is updated as of the date of publication stated above. As this situation is novel and the government’s response to the outbreak is continuously developing, this article may not necessarily include updates or developments after this date. In situations of doubt, you are advised to check for updates directly with the government authorities.

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This article was written by Donovan Cheah. Donovan has been named as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific 2017, 2018, 2019 and 2020, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.

Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.

 

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