Friday 30 July 2021

One month extension for SST returns and payment of tax

The Royal Malaysian Customs Department (RMCD) has announced a one month extension (until 31 July 2021) for the submission of SST-02 forms and payment of sales and service tax (SST) by registered manufacturers and registered persons affected by the movement control order (MCO 3.0). 

Penalties imposed through MySST due to delays in submission of the return and payment of tax will be remitted based on the application from the manufacturer and registered person with the condition that the return and payment of tax must be made before 31 July 2021.


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Wednesday 30 June 2021

Amendments made to conditions and goods exempted in relation to persons entering Malaysia

The Sales Tax (Persons Exempted from Payment of Tax) (Amendment) (No 2) Order 2021 has been gazetted and comes into operation on 1 July 2021. The order amends the following:

  • • Item 16: Amendments in relation to any persons entering Malaysia (other than designated area) through all modes excluding air. The list of goods exempted and conditions under this item have been amended.
  • • Item 16A: A new item has been added in relation to any person entering Malaysia (other than designated area) through air mode.
  • • Item 17: Amendments in relation to any person entering Malaysia from designated area. The list of goods exempted and conditions under this item have been amended.


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Thursday 27 May 2021

Approved Major Exporter Scheme (AMES) - report to be prepared for exemption

The Royal Malaysian Customs Department (RMCD), on 9th April 2021 has published the reports that need to be prepared by Manufacturers or traders who are exempted under the Approved Major Exporter Scheme (AMES) are required to prepare the following reports:
  • Trader:
    • • AMES — 03: monthly statement for movement of taxable goods by trader under AMES.
  • Manufacturer of exempted goods:
    • • AMES — 04: monthly statement for movement of raw materials, components, packaging and packaging materials
    • • AMES — 04A: monthly statement for export/local sales of exempted finished goods.
  • Trader or manufacturer — non-compliance:
    • • AMES — 02: declaration form to be furnished when making payment of sales tax arising from non-compliance with the AMES conditions.


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Monday 19 April 2021

Malaysia: ‘No Jab, No Job’ — Can Employees be Compelled to Vaccinate Against COVID-19?

 This article is written by Amardeep Singh Toor (Partner) and Wong Lien Taa (Pupil-in- chambers) (Lee Hishammuddin Allen & Gledhill) (LHAG) and was published  in March 2021. Reproduced with permission from LHAG.

The National Immunisation Programme has begun. The COVID-19 vaccine will soon be widely accessible to the public. Many employers are contemplating the same question: Can employees be compelled to vaccinate against COVID-19 or alternatively, can employers introduce a “no vaccine, no entry” policy?

The answer is not as straightforward as one might think. Compulsory vaccination interferes with the right to respect for one’s private life, which encompasses both his physical and psychological integrity. Employers generally therefore cannot compel their employees to be vaccinated. As will be discussed below, however, there may be instances where compulsory vaccination is justified.

Currently, only employees covered under the Employees’ Minimum Standards of Housing, Accommodations and Amenities Act 1990 may be required to vaccinate against COVID-19. For other employees, it is left open as to whether employers can require them to be vaccinated. In determining whether they may require their employees to vaccinate against COVID-19, employers should consider the following factors:

          (a) The employer’s obligations and duties under the Occupational Health and Safety Act 1994 (OSHA);

          (b) The need for the employees to be vaccinated; and

          (c) The employees’ reasons for refusing vaccination, if any, and whether such reasons can be reasonably accommodated.

With the immunisation drive barely a month old, there are no reported cases in Malaysia pertaining to this matter. In this regard, guidance is sought from relevant cases from other jurisdictions.

(a) The employer’s obligations and duties under the OSHA

Every employer has a duty under the OSHA to ensure, so far as is practicable, the safety, health and welfare of all its employees at the office. Non-compliance with this duty may lead to a constructive dismissal claim under the Industrial Relations Act 1967.

In a case in Ireland, an operations coordinator claimed that she was constructively dismissed following her employer’s refusal to implement work-from-home (WFH) arrangements following the COVID-19 pandemic. The Irish Workplace Relations Commission found in favour of the employee. In doing so, the Commission considered the employer’s duties under the Irish Safety, Health and Welfare at Work Act and held that compliance with these statutory duties is an implied and fundamental term of the employment contract and significant non-compliance could represent repudiation of the employment contract. In reaching its decision, the Commission considered the fact that: (a) social-distancing practices were not practicable, given the confined nature of the office workspaces; (b) employees were able to WFH on a rotational basis considering their scope of work; and (c) the workplace preventive measures taken, such as supplying cleaning materials, PPEs and the shifting of workstation arrangements were considered inadequate in eliminating the risk of virus transmission between employees as compared to allowing them to WFH.

In respect of requiring vaccination, there was a New Zealand case where an employer was held liable for not taking practicable steps to ensure that its employee, a janitor, was not exposed to the risk of contracting Hepatitis B. This resulted from the employer’s failure to offer the employee either a screening or vaccination for the virus which was a requirement under the company’s policy. The outcome was different for an employer in another New Zealand case concerning its employee, a support worker for the intellectually disabled, who had contracted Hepatitis B while attending to a client under her care. Here, in the absence of a company vaccination policy, the District Court held that it was not practicable to demand that an employer protect the employee’s safety by requiring a blood test when it had no authority to do so, even more so by requiring him to get vaccinated.

In both cases, the District Courts’ findings were reached by auditing the employer’s health and safety policies at the workplace.

From the foregoing, it would appear that an employer may be able to justify implementing a mandatory vaccination policy on the basis that it is one of the steps taken to comply with its obligations and duties under the OSHA.

(b) The need for employees to be vaccinated

One of the considerations in determining the need for a mandatory vaccination policy would be the nature of work undertaken by the employee.

In Hustvet, the employee was a living skills specialist at a rehabilitation centre. Her role involved assisting clients with disabilities in developing and maintaining independence in their home and community. It was a requirement in her employment to carry out a health screening to disclose whether she has immunisation to Rubella and to take a vaccination if she does not.

While the employee had carried out the health screening which disclosed that she was not immunised to Rubella, she did not take the required vaccination. She was subsequently dismissed. The US Court of Appeals found that the requirement for vaccination was reasonable as it was job-related and consistent with business necessity to ensure that employees were medically safe to undertake their engagements with clients, who were individuals with compromised or fragile immune systems.

Likewise, the requirement for mandatory flu vaccination for employees of a childcare centre and hospital10   was held to be lawful and reasonable as the nature of the business therein involves close contact with young children and infants. In the particular context of mandating COVID-19 preventive measures, the following guidelines and/or policies were upheld by the courts:

          (a) The workplace policy implemented by a retirement home, requiring its employees to take a bi-weekly swab test.11   Here, the policy was held to be reasonable in view of the need to prevent the spread of COVID-19 at the retirement home, particularly since the virus can often be deadly for the elderly.

          (b) The workplace guidelines implemented by an airport requiring its workers to self-isolate following a COVID-19 swab test.12   Here, an airport worker who had failed to self isolate following a COVID-19 swab test was held to have placed countless others at risk of illness or death by her actions especially since she was working at an airport.

It is apparent from the above that a mandatory vaccination policy may be justified where the employee’s nature of work: (a) presents a high risk of both transmitting and contracting the virus; (b) involves contact with clients who are individuals with weak immune systems or categorised as “high-risk”; and/or (c) requires employees to work in a contained environment where social distancing is not practicable. The need to vaccinate must be an inherent requirement of the job13   having regard to the nature of work carried out.

(c) Employees’ reasons for refusing vaccination, if any, and whether such reasons can be reasonably accommodated

Employees may refuse to vaccinate against COVID-19 for various reasons. Such reasons can range from one’s religious beliefs in opposing vaccination as a medical practice, to personal medical reasons, such as: (a) a history of allergic reactions;14   or (b) the risk that its side effects will seriously harm one’s health, particularly if he has a pre-existing medical condition or is of old age.15 

In Fallon,16   an employee was dismissed for refusing to be inoculated against influenza as he believed that one should not harm one’s own body and that the vaccine may do more harm than good. His refusal was contrary to the employer’s policy which required its employees to receive the flu vaccine unless they qualified for a medical or religious exemption. The US Court of Appeals dismissed the employee’s claim of religious discrimination and found that his reason was not a religious one.

Similarly, the same Court rejected an employee’s refusal to vaccinate on medical grounds pertaining to her existing allergies as she was unable to produce sufficient medical evidence to substantiate such grounds.17 

Some employees may have legitimate reasons to resist the vaccination. Employers should implement appropriate measures to reasonably accommodate such reasons. Such accommodation should not impose undue hardship on the employer’s business,18   such as if it: (a) imposes more than a de minis cost on the employer;19   or (b) would cause or increase safety risks of legal liability for the employer.20   The accommodation of such employees’ reasons should also not involve the elimination of an essential function of a job.21 

In Robinson,22   an administrative associate in a children’s hospital was dismissed following her refusal to vaccinate against influenza contrary to the hospital’s policy. The policy mandated the vaccination of all hospital staff in a patient-care position. As the employee’s duties required her to be in close proximity with patients, the US District Court held that to accommodate her request to remain in a patient-care position vaccination-free would create undue hardship as it would have increased the risk of transmitting influenza to the hospital’s vulnerable patient population. The hospital was found to have reasonably accommodated the employee by offering her assistance in securing new employment in a non-patient care position where vaccination is not required.

The following other measures have been regarded as a reasonable accommodation of an employee’s reason to refuse vaccination:

          (a) Offering a pork-free (non-gelatine) influenza vaccine to a Muslim employee who refused vaccination on religious grounds.23 

          (b) Granting a medical exemption to an employee who claimed to have a history of allergic reactions to the influenza vaccine. Here, the employee was required to provide medical documentation or records to support her claim.24 

As a matter of good practice, employers are encouraged to initiate and engage in an interactive process with their employees25   to: (a) obtain more information regarding their reasons to refuse vaccination; and (b) subsequently work out an appropriate solution to accommodate such reasons, if possible.

Conclusion

In the absence of a statutory provision or guidance which requires employers to enforce mandatory vaccination on its workforce, the factors above should be thoroughly considered by employers before implementing a mandatory vaccination policy at their workplace.

Even if vaccination is an inherent requirement of the job, employers are advised to consider how they may encourage and incentivise employees to obtain the vaccine on a voluntary basis, rather than mandating it. By doing so, employers may be able to best maintain the balance between protecting the employees’ right to respect for one’s private life and ensuring a safe working environment.


Footnotes

1      Solomakhin v Ukraine [2012] ECHR 451

2      Section 24J(f)

3      Occupational Health and Safety Act 1994, s 15(1)

4      An Operations Coordinator v A Facilities Management Service Provider [2020] WRC ADJ-00028293

5      Ibid

6      WorkSafe New Zealand v Rentokil Initial Limited [2016] NZDC 21294

7      Department of Labour v Idea Services Ltd [2008] NZHSE 37

8      Hustvet v Allina Health System, 910 F.3d 399 (8th Cir. 2018)

9      Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083

10    Robinson v Children’s Hospital Boston, WL 1337255 (D. Mass. Apr. 5, 2016)

11    Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531

12    Garda Security Screening Inc v IAM, District 140 (Shoker Grievance) [2020] O.L.A.A. No. 162

13    Ms Maria Corazon Glover v Ozcare [2021] FWC 231

14    Ruggiero v. Mount Nittany Med. Ctr., 736 F. App’x 35, (3d Cir. 2018)

15    “Norway warns of Covid-19 vaccine risk after 23 die”, Bloomberg (16 January 2021) https://www.nst.com.my/world/world/2021/01/657879/norway-warns-covid-19-vaccine-risk-after-23-die

16    Fallon v Mercy Catholic Med. Ctr. of Se. Pennsylvania, 877 F.3d 487 (3d Cir. 2017)

17    Supra, n 8

18    Supra, n 10

19    EEOC v Oak-Rite Mfg. Corp, 88 Fair Empl. Prac. Cas. (BNA) 126 (S.D. Ind. August 27, 2001)

20    Ibid

21    Stevens v Rite Aid Corporation, 851 F.3d 224 (2nd Cir. 2017)

22    Supra, n 10

23    Ibid

24    Ibid

25    Supra, n 21

 




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Monday 5 April 2021

Working From Home: Legal Issues and Concerns

 This article is written by Amardeep Singh Toor (Partner) and Alycia Tan Wei Wenn (Associate) (Lee Hishammuddin Allen & Gledhill) (LHAG) and was published  in September 2020. Reproduced with permission from LHAG.


The COVID-19 global pandemic has made working from home (WFH) become more commonplace than the daily commute to the office. Even with the gradual lifting of the movement restrictions in Malaysia, many employers continue to encourage WFH arrangements. There are undeniably many advantages, for employers and employees alike, in having a WFH arrangement. Employers should, however, be aware of the various legal issues and concerns that come with working remotely.

Confidentiality and cybersecurity

Confidentiality and cybersecurity are issues of paramount concern in every organisation. Leaking or disclosing confidential information constitutes a serious act of misconduct, even where it is unintended. In the same vein, there are severe consequences arising from an employee’s act of providing unauthorised persons with access to company property, such as by divulging his login credentials for an internal system.

WFH arrangements create room for the unintended leakage or disclosure of confidential information by employees and give rise to potential cybersecurity risks. An example may be where an employee allows a family member to use his work laptop or leaves the laptop unattended while confidential documents are left open and/or easily accessible. Another possible scenario is where the employee does not use a secured Wi-Fi or a virtual private network when working on the laptop, hence leaving it vulnerable to a cyber-attack.

Considering the above situations, employers should take steps to ensure that confidential transactions, deals or documents are not in any way compromised by employees who are WFH. Documents should be stored under lock and key, especially if the employee does not live alone or if his workspace is frequented by others. Employers who provide work laptops to employees need to regulate their use to ensure that employees always keep them secure. Employers should also set out clear protocols for employees to follow in the event of a cyberattack so that employees are well-equipped to manage cybersecurity risks presented by WFH arrangements.

Health and safety

Every employer has a duty under the law to ensure, so far as is practicable, the safety, health and welfare of all his employees at the office. It is relatively straightforward for employers to take such health and safety measures when their employees are working at a place under their control. Employers, however, do not have the same sway when it comes to an employee’s home.

Issues may arise should an employee sustain an injury during normal working hours while WFH. Employers may face difficulties in determining whether the injury can be classified as an “occupational” injury if the employee had sustained it while carrying out a non-work related activity. There should be clear instructions and procedures for reporting work-related injuries sustained during WFH arrangements.

Employers should also be wary that there may be a need to review existing insurance policies to ensure that their WFH arrangement does not contravene any terms and conditions of such policies.

Time management

While WFH can boost employee morale due to the obvious savings in costs and lower stress levels associated with commuting, WFH may also give rise to disciplinary concerns, especially in the aspect of time management.

WFH arrangements inevitably cause a blurring of lines between working and non-working hours. This may lead to employees working at irregular or erratic hours instead of their normal working hours. Employees may even be uncontactable during working hours, leading to unnecessary delays in completing tasks. For employees covered by the Employment Act 1955, WFH arrangements may also lead to dubious overtime claims if not properly regulated.

Employers will need to seriously consider effective steps to manage these disciplinary concerns arising from WFH arrangements. This may include the implementation of appropriate mechanisms to monitor timekeeping for employees, especially those who are entitled to overtime claims.

Assessment of probationers and performance

WFH arrangements present considerable challenges in assessing the performance of employees. This is especially so in regard to a probationer. It is trite law that employers need to provide a fair opportunity for a probationer to prove his suitability for permanent employment. In doing so, the employer would need to assess whether the probationer possesses the right skill, competence, temperament, aptitude, attitude and suitability.

It may not be too difficult to monitor a probationer’s skill or competence while he is WFH. Without face-to-face interactions, however, employers may find it challenging to assess a probationer’s temperament and attitude having regard, inter alia, to the organisation’s corporate culture.

Employers may need to consider how they can reconfigure their employee performance management system, including yearly appraisals and performance improvement plans, to cater to WFH arrangements.

Conclusion

WFH arrangements are being increasingly accepted as part of the “new normal” and the practice appears to be here to stay as long as the global pandemic persists. With WFH being a relatively new practice among Malaysian organisations, employers may find themselves struggling to navigate through the waves of various legal issues and concerns that may come with the implementation of WFH arrangements.

It is imperative for employers to implement a written WFH policy to manage and address such issues and concerns as failure to do so can have serious implications.


Footnotes

1      Robert TI v ECM Libra Avenue Securities Sdn Bhd [2013] 1 ILR 112

2      Mohd Rosli bin Mohd Noor v Perodua Sales Sdn Bhd (Industrial Court Award No 2329 of 2019)

3      Occupational Safety and Health Act 1994 [Act 514], s 15(1)

4      Employees who are covered by the Employment Act 1955 are as follows:

          (a) any person who, irrespective of his occupation, has entered into a contract of service with an employer under which his monthly wages does not exceed RM2,000 a month; or

          (b) any person who, irrespective of the amount of wages he earns in a month: (i) is engaged in manual labour; (ii) is a supervisor of employees engaged in manual labour; (iii) is engaged in the operation or maintenance of any vehicle used for transport of passengers or goods or for reward or for commercial purposes; (iv) is engaged in any capacity in any locally registered vessel but is not a certified officer; or (v) is engaged as a domestic servant.

5      Inti Iabs Sdn Bhd (Inti College Sarawak) v Frank Samuel Agong [2000] 3 ILR 204

6      Roslan Baba v Puncak Niaga (M) Sdn Bhd [2013] 3 ILR 216

 




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Wednesday 24 March 2021

Tourists to pay tax on accommodations booked online



From 1 July 2021, tourism tax will be levied on a tourist staying at any accommodation premises booked online through a digital platform service provider. The order has been gazetted on 16th March 2021. 




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Thursday 18 February 2021

Malaysia's DTA with Cambodia now in effect



The provisions of the Double Taxation Agreement (DTA) between Cambodia and Malaysia are effective in Malaysia from 1 January 2021. The DTA was gazetted on 30 December 2019 and entered into force on 28 December 2020.


(Note: For the text of the treaty or further information about our Tax Subscriptions, contact us at my-sales@wolterskluwer.com (Malaysia)).

One month extension for SST returns and payment of tax

The Royal Malaysian Customs Department (RMCD) has announced a one month extension (until 31 July 2021) for the submission of SST-02 forms an...