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.1 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-19.2 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.3 Non-compliance with this
duty may lead to a constructive dismissal claim under the Industrial Relations Act 1967.
In a case in Ireland,4 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.5
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.6 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. 7
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,8 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 centre9 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.
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
