Endemic Stage: Employers’ Duties
NB: This article is based on information available as of the date of publication stated above. As 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.
As we transition to the endemic phase of COVID-19, the general Standard Operating Procedure (SOP) has been streamlined, with additional guidelines issued for different sectors and activities (#ReopeningSafely Guidelines).
In this article, we will be setting out employers’ general obligations and what the SOPs mean for employers in Malaysia.
There are two guidelines issued which relate to activities at the workplace, i.e. Indoor Work Spaces and Outdoor Work Spaces (“Guidelines”).
The new employment-related SOPs require employers to ensure that:
- Employees scan the QR Code using their MySejahtera application upon entering the premises;
- Only employees with a “Low Risk” status on their Mysejahtera may enter the premises;
- Employees are always wearing a face mask while on the premises or carrying out their duties, unless in exempted situations, e.g. while eating or drinking, while carrying out a performance, or if the individual has special needs or breathing difficulties (certified medical report required for exemption);
- Employees are always practicing physical distancing of at least one meter from each other while on the premises or carrying out their duties;
- Employers comply and enforce COVID-19 test requirements on employees;
- Employers bear the isolation costs for COVID-19 positive employees and also the quarantine costs for close contact employees;
- Employers fund the COVID-19 screening tests (if the employee is symptomatic while on the premises), the cleaning costs and also the premise-disinfection costs;
- Employers accept Home Surveillance Orders for suspected, or confirmed COVID-19 positive employees as evidence of the employee undergoing isolation or quarantine and;
- Employers review the digital vaccination certificate on the MySejahtera application for each employee who requires complete vaccination status as a condition for certain activities.
Commentary
Although the Guidelines are presented as a simplified document with flowcharts, there is still confusion given there are numerous other documents co-existing with the Guidelines, such as 52 annexures of guidelines by the Ministry of Health. It is unclear how inconsistency between the documents will be resolved.
However, what do the Guidelines mean for employers and employees? Our comments below are based on our interpretation of the Guidelines and information available as at the date of this article.
- Costs & Employee Management
Employers are to bear the costs of testing if an employee is identified as symptomatic while on the work premises or at locations where activities are held. Employers are also to bear the costs of treatment and isolation.
Previously, employers were only required to bear the costs of testing and it was not clear if employers had to bear the costs of quarantine and isolation (employers were only encouraged to do so by authorities). Now, the SOPs are clear in that the costs of testing, treatment, isolation (for positive employees) and quarantine (for close contacts) must be borne by the employer if the employee is identified as symptomatic while on the premises.
If periodic testing has to be carried out due to a high-risk workplace, employers should cover the costs of testing for fully vaccinated individuals and those exempted due to medical reasons. Employers also have to bear the costs of cleaning and disinfecting the premises.
However, if an employee has to isolate outside his or her place of residence, these costs must be self-borne. Employees are to cover their own costs of testing if they are symptomatic while at home. Those who are unvaccinated, partially vaccinated or who are eligible but choose not to be vaccinated (with no certified exemption due to medical reasons) will also have to cover their own costs for testing.
From an employment law perspective, employers should be free to set their own policies, with requirements higher than those stated in the SOP or any guideline. The SOPs do permit parties responsible for premises, including employers, to put in place additional requirements to protect employees, customers and visitors in their premises. Hence, employers can set requirements which are in their opinion necessary to comply with their duty as an employer to ensure the safety, health and welfare of the individuals in their workplace.
Besides setting proper policies, good management of leave applications by ensuring there are proper procedures in place to grant, reject and monitor sick leave applications will help organisations manage their workforce and to come up with workarounds in advance to address any temporary shortages.
- Home Surveillance Orders
Employers must accept a Home Surveillance Order (HSO) as proof that the employee is undergoing isolation or quarantine. If employees are asymptomatic or test negative but must quarantine for a specific period before being released from the HSO, employers can request that the employee continue working from home.
- Vaccination Status
General SOPs treats individuals who have not received their booster shot as not fully vaccinated, i.e. they will lose their “Fully Vaccinated Status” on the MySejahtera application, but remain allowed to perform activities permitted for individuals who have completed their primary dose.
However, the Guidelines treat individuals without a booster dose differently, as they permit these individuals to perform activities permitted for those who are fully vaccinated.
This inconsistency may cause confusion as to the public’s understanding of what level of vaccination constitutes fully vaccinated status.
Nevertheless, the Guidelines differentiate between those who have a booster dose and those without, in setting out the testing and quarantine requirements for case management. All individuals who have not received a booster dose will have to comply with the same testing and quarantine requirements as not fully vaccinated and unvaccinated individuals.
We have yet to understand the effect of this inconsistency and what the clear position is on this matter. Until the government provides clarity on the labels and treatment of partially vaccinated individuals, it may be best for individuals who have not received their booster dose to only participate in activities permitted for individuals with a complete primary dose of vaccination, and not those which strictly require fully vaccinated status, to prevent risk of liability.
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This article was written by Donovan Cheah (Partner) and Adelyn Fang (Associate). Donovan has been named as a recommended lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019, 2020, 2021 and 2022, 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.
