At the present time of writing, the World Health Organisation has confirmed some 114,000 infections of the Coronavirus Disease 2019, or COVID-19. COVID-19 has so far claimed in excess of 4,000 lives globally, and disease response and preparedness is becoming a factor that will influence major policy decisions and standard operating procedures for the foreseeable future, in both the public and private sphere.
Naqiz & Partners is advising its clients, particularly in Malaysia, on the potential employment legal issues that may be affected by COVID-19. We take a look at some of these issues.
Protecting Employee Safety
Employers have a duty to ensure workplace safety, which includes reasonable measures to prevent the communication of disease. Corporations should immediately formulate and enforce a detailed plan both to comply with legal duties and to minimize and mitigate the impact of a potential infection of employees.
We recommend that such a plan provide, at a minimum:
• Real time or near-real time communication of important updates from trusted sources, such as the Ministry of Health and the World Health Organisation
• Executing a risk assessment (recent travel history, known family members, presentation of COVID-19 symptoms)
• Ensuring good sanitation and hygiene in the workplace
• Essential training for employees on disease prevention best practices
• Contact details update and circulation
• Review of existing policies which may be affected, such as sick leave, flexible working hours, emergency leave due to dependent’s infection
• Circulation of danger signs / symptoms and information as to the nearest health care provider competent to deal with a possible infection
• Review insurance policies to determine if a COVID-19 hospitalisation is covered
• Restrict business travel to high risk countries to essential travel only
• Require that returning employees from high risk countries report to human resources
• Require that employees disclose a close contact that is infected
Is an Employee entitled or required to work from home?
The Employment Act 1955 does not prohibit an employee from working from home, although an employment contract may specify designated work areas. It should be a matter of priority for corporations to set up guidelines as to work from home criteria, particularly for returnees from high risk countries.
Employers should exercise sound judgment when requiring employees to work from home. A balance should be struck between balancing the needs of the corporation and the health and safety of both the at risk employee and the employees of the corporation in general.
In the case of enforced leave, employers should be advised on the Employment Act 1955 for salaried employees earning less than RM2,000, and the conditions of employment contracts, to ensure that such a measure does not amount to an unlawful interference with the employee’s right to work, or a constructive dismissal.
Employers should note that the Occupational Health and Safety Act 1994 (OSHA) provides that the Department of Occupational Health and Safety may require that any occupation posing a safety hazard to a worker may be stopped by a stop work order. Failure to comply attracts heavy penalties.
In the case of employees who refuse to attend work out of a fear for contracting COVID-19, employers may be sympathetic with the legitimacy of such a fear (for instance, where a co-worker has been infected) however there may be some employees who may exploit the situation and in this instance, policies should contain clear disciplinary measures in such an event.
Can the Employer compel a health screen?
There are two paramount considerations here, these being the obligation to provide a safe workplace and obligations to ensure an employee’s personal data is protected.
There is no provision in the Employment Act 1955 that empowers an employer to compel a health screen. An employer may by contract require an employee undergo health screens, for example as a criteria for employment. What is important is that proportionality and sensitivity be observed, in circumstances where a health screen is a necessary precaution. Other factors to be considered include the costs of a health screen, and who pays.
The Personal Data Protection Act 2010 classifies health information as sensitive personal data, which requires express consent from the employee. Employers should also keep health information strictly confidential, and prevent proliferation of that data, bearing in mind that a health screen may reveal personal data other than the presence of the COVID-19 pathogen.
Employers should also be sensitive to potential or perceived discrimination if certain employees are targeted based solely on their nationality or race.
We would be happy to take your questions. Contact firstname.lastname@example.org if you wish to speak to a lawyer to assist you, or visit our website for more information.
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