With the pandemic raging and ravaging our country, the news that government is at last allowing businesses to open up is a welcome relief. Our government, ever vigilant and respectful of human rights and the need to protect public health, is mandating employers to mandate their employees to vaccinate.
Datuk Seri Saravanan, the Human Resource Minister, said so himself.
Here are 10 legal steps that companies should take before mandating vaccination on employees:
1. INJECTION MUST BE IMMUNISATION
Humans are the result of at least half a million years of miraculous biology and design. The human body is created with amazing disease-fighting capabilities and rejuvenation but due to modern lifestyles and diseases our body sometimes need some extra help from science. Hence the need for vaccines to give us immunity from deadly diseases.
Please read up and do your research on whether the vaccines are actually effective in preventing the spread of disease in your workplace. Because if vaccines do not actually prevent the disease, then mandating them in support of government policy may just amount to a lulled sense of security and virtue signaling.
The law allows government to direct (not mandate) vaccines only if they are scientifically proven to be immunisation against a disease. If it is not, then government should instead direct (not mandate) treatment.
2. DRUG REGISTRATION
Malaysia is world-famous for its tough and unmoving stance on illegal and illicit drug selling and consumption. Illegal drug dealers are mandatorily hanged; therefore, it should surprise no one that Malaysia has very stringent regulations on the approval and registration of new drugs and medicines before they are allowed to be sold and used by the population.
In most things in life there are of course exceptions: the World Health Organisation (WHO) says there is now a pandemic. The vaccines that they are now pushing as immunisation have been given emergency and conditional approval for use.
Please take the effort to find out what vaccines your employees are asked to take and whether these have been properly registered including finding out about their storage, handling protocol and shelf lives. Do not be shy to ask for information regarding their origin and whether clinical trials have been conducted on their safety and efficacy.
3. ADVERSE EFFECTS
Nothing good in life comes without a cost. There is no free lunch. Although the vaccines are given free, we will still need to pay for any possible side effects.
Take the time to learn about any adverse effect of vaccination.
Although we believe our new Health Minister that no one has so far died in Malaysia after full vaccination; life, illness and mortality are often less technical than that. In fact, they can be dead real. If the cure turns out to be worse than the disease, vaccination can have devastating consequences on workplace productivity and of course, morale.
As employer, you must by law, spell out and explain to your employees all possible side effects and consequences of vaccination. Although much information and news have been dressed up and are not available in the mainstream media, you can easily find out about them from the vaccine manufacturer’s information booklet as well as from groups compiling information on AEFI (Adverse Effects Following Immunisation).
4. INFORMED CONSENT
The law is sometimes an ass. While you as the boss can order your staff to register for vaccination, the law on medical negligence and tort requires your staff (and not you) to give consent.
This is the reason in the government form that your staff has to sign before getting the injection it must first be declared that he has been given full information about the vaccine and side effects and that he freely and willingly gives his consent to the medical procedure. Therefore, as a responsible employer, you need to explain to your staff carefully and in detail about all possible risks so that in the event of any medical misadventure, you will not be liable in law for any consequences.
In short, your company must not be an indirect party to any medical negligence brought about by the lack of a valid and informed consent.
5. EMPLOYMENT CONTRACT
These days with all the chest thumping by the government about the virtue of vaccine, you are forgiven as employer for thinking that ‘no jab no job’ has been written into law. It has not.
The government is only passing the buck to you as employer. Your relationship with your employee is bound by contract. Before you tell your employee that they must be inoculated or be sacked, please ensure that such terms or regulations have been contracted for at the time your employees join your company. Labour laws do not allow employers to change any term or condition of employment without the employee’s agreement or consent.
Your company may have a handbook that is reviewed and updated from time-to-time. Such reviews and updates must still relate to day-to-day and ordinary work duties and obligations of the worker. For example, a restaurant owner can order his cook to take a hepatitis jab but an IT outsourcing company cannot do the same to his telemarketer.
6. FEAR & COERCION
Believe it or not, health, according to the WHO, is “a state of complete physical, mental and social well-being and not merely the absence of disease.” Like everyone around them, your employees and workers have suffered enough. They have endured a long duration of social restrictions, loss of income and purposelessness. They deserve fairness, if not your sympathy.
Coercion and fear are powerful motivation and incentives for action but they must be carefully managed. To prevent your staff from complaining to the labour officer about workplace coercion, you will need to carefully educate your workforce about the balance between individual medical liberty and the need to protect other employees from disease. The best way to do this is to encourage an atmosphere of discussion, education, and transparency in matters of health and individual responsibilities.
Please be aware that under the Occupational Safety and Health Act (OSHA) you are not allowed to sack any employee simply on the grounds that he or she refuses to comply with company procedure on grounds of fear about safety.
Calling your staff an anti-vaxxer, selfish or an irresponsible spreader of disease is counterproductive and frankly, legally and morally quite wrong.
Government, both here and abroad has dangled lots of incentives ranging from free doughnuts to lucky draw cars to encourage vaccination. There is nothing in law to stop you from doing the same. You can give cash handouts and other goodies but must be careful not to make the rewards discriminatory.
Bonuses are always dependent on performance unless you declare that this year’s bonus hinges upon obedience and health and not job performance. Using bonus to promote vaccination can be seen as an unfair exercise of corporate discretion and discriminatory labour practice.
8. LONGER STICKS & DISMISSAL
Large companies especially government-linked ones are using executive policies of the government as their basis to mandate employee vaccination. Often these sudden company policies made without consultation or discussion with employees take the form of directives from CEO or Board of Directors to ensure compliance.
Of course, companies as corporate citizens have a duty to follow the law but they cannot blur the distinction between private and public in their eagerness to be seen to be doing the right thing. Such directives from the top cannot exceed the powers of the law unless vaccines are mandatory in law which at present it is not. No company can simply rely on supposition of law as law itself to force employee to comply.
Taking disciplinary actions against employees for not complying with company policies based on supposition of law can lead to claims of unfair dismissal. Companies must be careful in taking disciplinary action because not every command made outside the bounds of employment can be treated as insubordination and misconduct.
Put your money where your mouth is. If you believe in vaccine as the only way for business and society to get back to normal, then you must be prepared to wager for the truth.
Nothing is more powerful and confidence instilling than a boss who announces a comprehensive compensation and indemnification policy to all his staff that in the event of injury, incapacitation or death he would make a payout to cover the unfortunate staff’s hospital bills, the upkeep of his surviving family and bereavement expenses.
For example, if a company forces all its employees regardless of their physical abilities to go on a company’s teambuilding trip to the Everest Base Camp, then the company should be prepared to foot the bill for any accidents or evacuations that may occur. Refusal by the company to offer any compensation or indemnification can be seen as absolving liability for its action and having something to hide.
10. THE BUSINESS OF GOVERNMENT
Remember your company belongs to you, not the government. The business of a company is to make profit and avoid loss. You have no business nor responsibility to manage the pandemic. That is the government’s job.
At the time of writing, Malaysia does not have any law mandating vaccination. You must make this clear.
What the government is only doing is to force companies and employers who in turn force their employees and staff to vaccinate. This situation is not unique to Malaysia, it is practised worldwide, especially in countries eager to comply with the coercive measures recommended by WHO and its global agencies and allies.
Companies need to understand this. That unlike government which mandates to rule and govern are fixed and prescribed until the next election, companies are organic and in law perpetual. Their growth and strength are determined by how long they are able to stay fit and in the game.
Therefore, as government policies shift with science and geopolitics, companies must ensure that their rules of engagement with their most valuable assets – their human resources do not get compromised by this vacillation in vaccine mandate.
The government knows that mandating vaccination is hard, messy and unpopular. It knows that it cannot mandate vaccination. That is why it is doing it through you.