The novel Coronavirus has in recent weeks spread vastly. With new cases continuously being found all over the world, it is no wonder that governments are implementing additional measures to protect the health and wellbeing of their residents. In Malaysia, a number of procedures have been implemented to minimise disruption to businesses and continue operations; while attempting to safeguard employees in the workplace. The Coronavirus has presented exceptional circumstances and as such employers must be prudent in their decision making, especially regarding measures in the treatment of employees.
Employers’ duties in Malaysia
Occupational Safety and Health Act (“OSHA”)
According to the Occupational Safety and Health Act (“OSHA”) of Malaysia, employers in prescribed industries are required to maintain workplace health and safety.
Under this Act, employers have a general obligation to ensure that their employees are not exposed to risks to their health and safety in the workplace, taking practicality into account. Employers who fail to comply with the obligation outlined in the OSHA risk being fined an amount not exceeding RM 50,000 and/or imprisonment for at least two years.
The OSHA only applies to certain industries in Malaysia (manufacturing, business services, wholesale and retail trades, construction) and recommends certain requirements in relation to occupational safety and health.
Common law duty of care
Regardless of whether the OSHA applies to an employer, all employers in Malaysia are duty-bound by common law to ensure workplace safety.
The INS Global team recommend that employers in Malaysia continue to monitor announcements and notifications made by the Malaysian government and take appropriate precautionary measures to uphold this duty of care.
Press Release by the Ministry of Human Resources (“MOHR”) – 6 February 2020
In a press release, the MOHR released guidelines for employers on how to handle contagious outbreaks, including COVID-19. The guidelines state that employers are to take the following measures:
(a) Instruct employees to be examined immediately, at the expense of the employer, by a registered medical practitioner or medical officer (“Doctor”) as stipulated by Section 60(f) of the Employment Act 1955 (“EA”);
(b) To provide paid sick leave or hospitalisation entitlement during the quarantine period to employees receiving quarantine orders from doctors, regardless of whether the employee is quarantined at home or at hospital. Employers are encouraged to provide extra compensation to employees under a quarantine order who exceed their sick leave/hospitalisation entitlement;
(c) To provide full pay to employees who have received a quarantine order from a doctor as a result of the employee travelling on the instructions of the employer to a destination where there are Coronavirus cases;
(d) Not to prevent employees from attending work in the absence of a quarantine order issued by a doctor. However, employers are permitted to instruct any unwell employee not to come to work by providing paid sick leave to the employee; and
(e) Not to instruct employees to utilise their annual leave or take unpaid leave during any quarantine period.
Please note that the Employment Act (EA) only applies to EA employees (whose wages are RM 2,000 and below or those engaged in stated work such as drivers, manual labourers, despatch, etc. regardless of salary). It is unclear whether (a) applies solely to EA employees or all employees regardless of whether they fall into the category of EA.
Period of Quarantine
For example, the Malaysian government requires Malaysians who have returned from Hubei province in the last 14 days to self-isolate at home.
Policy on working from home
In light of the coronavirus outbreak, employers are at liberty to require employees who may have been exposed to the COVID-19 virus (e.g. because they have returned from an unsafe destination) to work from home or remotely as a precautionary measure. Some employees have already implemented this measure in relation to those who are unwell. The Malaysian Trade Union Congress has also supported this recommendation and has called for employers to be flexible in making alternative arrangements including working from home.
If an employer requests that an employee works from home, he/she should continue to receive his/her full salary and benefits.
If an employee is required to remain at home as a precautionary measure but is unable to carry out operational duties due to the nature of their work, the employee should still continue to receive his/her full salary and benefits during the temporary suspension period. This is in the interest of both parties, avoiding potential constructive dismissal liability.
Employers should not require employees to take annual leave or unpaid leave, as this could lead to a constructive dismissal liability risk. Such leave may be taken upon mutual agreement between both parties but cannot be forcibly implemented.
It would be a legitimate action for employers in Malaysia to restrict business travel for their employees, for the purposes of complying with their employee health and safety obligations. Employers cannot restrict the personal travel of their employees as this would constitute an invasion of their private life. Employers may, however, require employees who are travelling to mainland China or other countries with confirmed cases of the novel Coronavirus, for private purposes, to declare this information so that safety measures can be implemented. This would mitigate any associated risks and would ensure compliance with the employer’s duty of care for their workforce.
Systems being adopted in Malaysia
Many employers in Malaysia have restricted travel for the purpose of business to mainland China, with some banning it outright to Wuhan and Hubei province, the epicentre of the outbreak.
In addition to requiring employees to work from home, many employers are limiting non-essential face-to-face meetings and are providing masks and sanitizers in the workplace in order to maintain good hygiene.