Monday, 10 February 2020

Employment guidelines for dealing with the coronavirus

Author: Donovan Cheah (Partner, Donovan & Ho)

The Ministry of Human Resources has announced guidelines to employers for dealing with employment issues arising from the 2019 novel coronavirus infections (2019-nCoV) (“Guidelines”).
We have summarised the Guidelines below:

Medical examination
Employees who have returned from countries with 2019-nCoV cases should be examined immediately (at the expense of the employer) by a registered medical practitioner or by a medical officer to ascertain entitlement for sick leave under s 60F of the Employment Act (EA).

Paid sick leave during quarantined period

If an employee receives a quarantine order from a registered medical practitioner (regardless of the employee being quarantined at home or at the hospital), the employer should provide paid sick leave or hospitalisation entitlement to that employee during the quarantine period.
Employers are encouraged to provide “extra remuneration” to employees with quarantine order exceeding sick leave or hospitalisation.

Full pay on quarantined period
Employees who receive quarantine orders from a registered medical practitioner, upon return from countries with 2019-nCoV cases (if the employee was there due to official duty or instructions from employers), should still receive their full pay.

No prohibition from attending work if no quarantine order received
Employers should not prevent employees from attending work if no quarantine orders are issued by any registered medical practitioner. However, an employer can instruct an unwell employee to not attend the workplace by providing paid sick leave to the employee.

Annual leave or unpaid leave
Employers should not instruct employees to utilise annual leave entitlement or take unpaid leave during the quarantine period if they are issued with a quarantine order.

The Guidelines are recommendations by the Ministry and do not have force of law; for example, references to the sick leave provisions of the EA, while useful as guidance, do not have any applicability to employees who are not covered by the EA. No details have been provided as to what “extra remuneration” should be provided to employees who exceed their sick leave or hospitalisation entitlements, and this is couched merely as an “encouragement”.
There also remain many grey areas which are not addressed by the Guidelines, for example, whether employees can refuse to travel to countries/locations with 2019-nCoV cases, or how to deal with employees who need to stay at home for reasons such as taking leave to care for family members who are quarantined.
That being said, employers are strongly encouraged to comply with the Guidelines issued by the Ministry to minimise any unnecessary disruptions and disputes at the workplace during this difficult period.
While there is no legal obligation for employers in Malaysia to have a specific 2019-nCoV response plan, employers should, where reasonably practicable, ensure that they are prepared to cope with any potential 2019-nCoV outbreak, especially if there is a high probability of employees travelling to countries and locations with known 2019-nCoV cases.

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