Can Employers Order Employees to be Vaccinated?

COVID-19 has interrupted businesses at unprecedented levels. Now that vaccination programmes have finally taken off in Malaysia, many hope to return to normal. Yet, there are legal issues related to these vaccines and employment law. 

Employer's legal obligation in vaccinating employees

Currently, there is no statutory provision that imposes a specific legal obligation on employers to innoculate their employees before letting them into a workplace or begin employment. 

But, can an employer require its employees to vaccinate themselves before entering the workplace or starting employment?

There are a few things employers must consider from a legal perspective: 

1. The duty to provide a safe work system;
2. The medical risks resulting from the vaccination; and
3. Situations that may justify mandatory vaccination at the workplace. 

Safe work system

Based on common law, employers have a duty of care to prepare a safe work system for their employees. As an extension of this responsibility, it would be reasonable to state that an employer is obligated to create and implement the essential policies of their workforce regarding COVID-19 vaccination.

As of now, there isn't any reported case in Malaysia, but there are cases from New Zealand that could serve as guidance. 

According to Department of Labour v Idea Services Ltd, [2008] NZHSE 37, an employer was accused under Section 6 of the New Zealand Health & Safety and Employment Act 1992 for unable to take "practicable steps to ensure the safety of employees while at work". 

The case began from an incident where an employee contracted Hepatitis B in the course of employment. The Court decided that the employer could not require its employees to vaccinate themselves. As long as the employer notifies its employees of the option for medical screening, they had complied with the relevant statutory obligations.

The judge held that it was not a practicable step for an employer to demand a blood test to prove immunity from Hepatitis B.

The vaccination programme in Malaysia has three phases.

Contrarily, in Worksafe New Zealand v Rentokil Initial Ltd [2016] NZDC 21294, the employer had a specific policy where it ordered its employment candidates to undergo Hepatitis B testing as part of the pre-employment screening process. The policy also specified that if a candidate were not immune to Hepatitis B, the employer would offer the candidate the choice of a Hepatitis B vaccination. 

But, the employer failed to undertake its pre-employment screening process for an employee, despite having raised the issue with his manager. The employer also did not offer him screening or Hepatitis B vaccination. Ultimately, the employee was hospitalised and diagnosed with acute Hepatitis B infection.

The employer admitted guilt to a charge under Section 6 of the New Zealand Health and Safety and Employment Act 1992. 

In Malaysia, the obligation to provide a safe system of work is codified under Section 1(1) of the Occupational Health & Safety Act 1994 ("OSHA 1994"), which commands a responsibility on each employer to ensure the health, safety, and welfare of its employees. 

Under the duty to provide a safe work system, employers must now recognise the importance of introducing sensible policies in administering COVID-19 vaccines. 

Medical risks

There is a possibility of adverse medical effects on a vaccine recipient. In South Korea, reports say that a seasonal flu vaccine had caused casualties, many of whom are elderly persons. It shows that though a vaccine may be effective in most situations, it is not without errors. 

Employers should be aware of any potential side effects of a COVID-19 vaccine, especially to employees under the "high risk" category. This category includes employees with pre-existing medical conditions or a higher age group.

Therefore, any rushed and arbitrary move to require vaccination at the workplace as an employment condition could result in the employer breaching its duty of care owed towards the employees.

An employer must carefully consider the medical risks, especially on the higher risk groups, and provide employees with adequate medical information on the vaccine's known potential side effects. 

Extraordinary situations that may justify mandatory vaccination at the workplace

Though employers are usually not allowed to order their employees to undergo vaccination, there may be circumstances where they are justified to require mandatory employee vaccination at the workplace.

Frontline healthcare industry employees are exposed to heavy traffic of COVID-19 patients and are at a higher risk of catching COVID-19.

Section 17 of the OSHA 1994 prescribes an obligation on all employers to ensure that persons, not being the employees, are not exposed to risks to their safety and health at the workplace. 

The third phase of the Malaysian vaccination programme will involve everyone 18 years old and above.

Since it is easy for COVID-19 to spread among healthcare workers and patients, there is a case to argue that healthcare industry workers should receive mandatory vaccination as an employment condition, subject to specific exceptions such as those with pre-existing medical conditions or under higher-risk groups.

Likewise, the need for mandatory vaccination may be more evident in respect of employees who are continuously stationed in remote facilities over an extended period with limited medical access. For instance, employees who are working in offshore facilities.

Since they do not have access to immediate medical attention within a reasonable vicinity and the enclosed nature of the workplace with many employees, one could justify their need to be vaccinated with the COVID-19 vaccine. 

The requirement for consent

The most important course of action for employers who intend to create a vaccination policy at the workplace is to secure their employees' permission. 

Such permission should be specific and referring to the COVID-19 vaccine instead of a generic vaccination consent. It is also crucial for employers to provide employees with adequate medical information on the vaccine's potential side effects so they can make an informed decision. 

Conclusion

Employers must be aware of the various legal conditions and duties in creating policies for administering the COVID-19 vaccine. Hence, in introducing vaccination policies and programmes, employers should consider these:

1. Generally, employers cannot require employees to be vaccinated.
2. Employers should advise employees on the known potential side effects, the high-risk groups, and the benefits of the vaccine. 
3. Employees have the final decision to take the vaccine.
4. Employers must assure that employees' consent to the COVID-19 vaccination is expressed in writing.

Source: Shearn Delamore & Co

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