Can employer’s force their

employees to take the

Covid-19 vaccine?
Amardeep Singh Toor
ast@lh-ag.com
03-6208 5878/ 016-4727554
Introduction
• Countries worldwide have already begun administering the
Covid-19 vaccine to its citizens on a large-scale basis
• In Malaysia, the first batch of Pfizer vaccines are expected to
be received at the end of February
Introduction
Introduction
• Once the vaccine becomes widely accessible to the public,
employers would be considering whether its employees can
be compelled to vaccinate against Covid-19 as a measure to
maintain a safe working environment for its workplace
participants
• Others are looking to introduce policies such “No Vaccine,
No Entry” for their office premises – such policy was
effectively force employees to vaccinate
 Can employers compel their
employees to vaccinate against
Covid-19?
How to make it compulsory?
• The answer is not as straightforward as a simple yes or no.
• compulsory vaccination interferes with the right to respect for one’s
private life including his physical and psychological integrity –
interferes with the right to choose

• There is currently no specific legislation or governmental

guidance which imposes a general obligation on employers
to enforce a mandatory vaccination requirement

• Except employers whose employees are covered under the

Employees' Minimum Standards of Housing, Accommodations &
Amenities Act
How to make it compulsory?
• Section 24J(f) - … an employer or a centralized
accommodation provider who provides accommodation for
an employee under this Part shall have the following duties
and responsibilities:
• to take preventive measures to contain the spread of infectious
diseases as ordered by the Medical Officer of Health in accordance
with the relevant written laws and the employer shall, at his own
expense, make arrangements as ordered by the Medical Officer of
Health so that all or any of the employees be given immunization
against any infectious disease
• This section will be used by the government to ensure vaccination of
foreign workers
How to make it compulsory?
• To introduce a mandatory vaccination requirement, it would
have to be expressly stated as a term or condition in the
employees’ contract of employment

• Taking a more practical stance, employers are more likely to

introduce or implement a workplace policy mandating the
vaccination of its employees – or introduce a “No Vaccine,
No Entry” policy
How to make it compulsory?
• Introducing a policy would lead to two situations in which it
may lead to an employee being dismissed, directly or
indirectly.

• Situation 1: An employee who objects to the implementation of the

policy may walk out of employment considering himself to be
constructively dismissed – Company will have to show that the policy
does not amount to a fundamental breach of the terms of
employment
How to make it compulsory?
• Situation 2: An employee does not object to the implementation of
the policy – he then refuses to comply with a vaccination policy –
employer would have no choice but to dismiss the employee – here,
dismissal will be premised on the failure to comply with a lawful
instruction – where the lawfulness of the policy will be investigated

• In either situation, if the matter were to be adjudicated

upon at the Industrial Court, the employer would have to
show just cause or excuse.
Can vaccination be compulsory?
• if an employer were to impose a mandatory vaccination
policy at its workplace, the following factors should be
considered before doing so:
• The employer’s obligations and duties under the Occupational Health
and Safety Act 1994 (“OSHA”);
• The need for employees to be vaccinated;
• The employees’ reasons for refusing vaccination and whether such
reasons can be reasonably accommodated.

• There are currently no reported cases in Malaysia pertaining

to this matter. Therefore, cases from other jurisdictions
might provide further guidance in this respect.
Occupational Health and Safety
 OSHA
• Section 15(1) of OSHA: Employers are under a duty to
ensure, so far as is practicable, the safety, health and
welfare at work of all his employees.

• Section 17(1) of OSHA: Employers must also conduct its

business in a manner that persons, not being its employees,
are not exposed to risks to their safety and health.

• A mandatory vaccination policy could therefore be justified

as a necessary form of compliance with the employer’s
OSHA obligations.
 OSHA
• Failure to take steps could also lead to constructive
dismissal claims premised on the failure of the employer to
provide a safe working environment

• Such could also amount to breaches of the employer’s work

place policy which promotes a safe working environment
 OSHA
• CA-00036314-001, Irish Workplace Relations Commission
• employee worked for a facilities management company and normally
worked on-site at a university client's premises.
• Her role involved checking students in and out and managing
maintenance issues
• Employee requested that she be allowed to work from home during
the pandemic.
• She suggested that she could rotate being present on-site with her
two colleagues to ensure that on-site duties were sufficiently covered
• Employer responded that there was never any suggestion that the
role could be performed remotely pre-Covid 19 and the same applies
post-Covid 19
• Employee claimed constructive dismissal
 OSHA
• CA-00036314-001, Irish Workplace Relations Commission
• Held: Employee had been constructively dismissed - the employee had
set out a clear grievance to her employer which suggested how the work
could be done in the safest way possible, but this was not adequately
considered. The proposal of a rota system for the three colleagues, to
ensure that one person was always on-site while the other two worked
remotely, was "eminently sensible" given the health and safety risks and
the potential to reduce COVID-19 transmission- most of the role could be
performed on the computer
• Held: the employer's requirement that the employee attend the
workplace, without adequate consideration of how it could seek to
eliminate the risks, amounted to a repudiation of the employee's
contract. Providing a safe place of work was a fundamental term of the
contract of employment. The employer had failed to comply with
health and safety principles by first seeking to eliminate risk, causing
the employee to attend work in greater danger.
 OSHA
• If an employer is to implement a vaccination policy, it
should be mindful to take steps to ensure full compliance of
the same by its employees’, failure of which may be
regarded as a breach of its OSHA obligations

• Worksafe New Zealand v Rentokil Initila Ltd [2016] NZDC

21294

• In New Zealand, employer was liable for not taking practicable steps
to ensure that its employee, who was a janitor, was not exposed to
the risk of contracting Hepatitis B. This resulted from its failure to
offer the employee either a screening or vaccination for the virus
which was a requirement under the Company’s policy.
 OSHA
• Department of Labour v Idea Services Ltd [2008] NZHSE 37

• Employer was not found liable notwithstanding that its employee, a

support worker for the intellectually disabled, had contracted
Hepatitis B whilst attending to a client under her care. Here, in the
absence of a Company vaccination policy, the Court held that, to
demand an employer to protect the safety of its employee’s by
requiring a blood test to which it had no authority to is not
practicable, more so in relation to getting vaccinated.
The need for employees to be
vaccinated
 Nature of business
• One of the considerations in determining the need for
implementing a mandatory vaccination policy would be the
nature of business undertaken by the employer.

• A mandatory vaccination policy may therefore be apparent

if the nature of the employer’s business (a) presents a high
risk of both transmitting and contracting the virus; or (b)
involves contact with clients who are individuals with weak
immune systems or categorized as “high-risk’ or (c) requires
employees to work in a contained environment where
social-distancing is not practicable
 Nature of business
• In Hustvet v. Allina Health System, 283 F. Supp. 3d 734, the employee
was a living skills specialist.
• Role involves 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 immunization to Rubella and to take a
vaccination if she does not.
• While the employee had carried out the health screening which
disclosed she was not immunised to Rubella, she did not take the
vaccination which is contrary to the rehabilitation centre’s policies. She
was subsequently dismissed.
• The Court found that the requirement 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
 Nature of business
• The requirement for mandatory Flu vaccination for
employees of a childcare centre and hospital was held to
be lawful and reasonable as the nature of the business
involves close contact with young children and infants [Ms
Nicole Maree Arnold v Goodstart Early Learning Limited T/A
Goodstart Early Learning [2020] FWC 6083 and Robinson v.
Children's Hospital Boston, WL 1337255 (D. Mass. Apr. 5,
2016)]
 Nature of business
• Other examples?
• Employment which deals with large number of people on a daily basis? Hotel
and shopping mall employees?
• Employment which deals with large number of people in a confined setting?
Employees of cruise liners/airplanes/buses/trains? Manufacturing?
• Santa Clause?
• It is not inconceivable that come November 2021, employers of men engaged to
play the role of Santa Clause in shopping centres, having photos taken around
young children, may be required by their employer to be vaccinated at least
against influenza, and if a vaccination for COVID-19 is available, that too. The
employer in those scenarios, where they are not mandated to provide social
distancing, may decide at their election that vaccinations of their employees are
now an inherent requirement of the job. It may be that a court or tribunal is
tasked with determining whether the employer’s direction is lawful and
reasonable, however in the court of public opinion, it may not be an
unreasonable requirement. It may, in fact, be an expectation of a large
proportion of the community. [Ms Maria Corazon Glover v Ozcare
(U2020/13450)]
 Nature of business
• In the context of mandating Covid-19 preventive measures,
the following guidelines and/or policies were also upheld by
the Courts
• Refusal of employees of a retirement home to take a bi-weekly swab
test contrary to the employer’s workplace policy. Here, the policy
was held to be a reasonable one in view of the need to prevent the
spread of Covid-19 at the home, particularly since the virus can be
often deadly for the elderly [Caressant Care Nursing & Retirement
Homes v Christian Labour Association of Canada, 2020 CanLII 100531]
• Failure of an airport worker to self-isolate following a Covid-19 swab
test contrary to workplace guidelines. The employee was held to
have placed countless others at risk of illness or death by her actions
especially since she was working at an airport [Garda Security
Screening Inc. v. IAM, District 140 (Shoker Grievance), [2020] O.L.A.A.
No. 162]
Reasonable Accommodation
Reasonable Accommodation
• Employees might refuse to vaccinate against Covid-19 for a
number of reasons. It can range from one’s religious beliefs
in opposing vaccination as a medical practice, to personal
medical reasons

• History of allergic reactions [Ruggiero v. Mount Nittany Med. Ctr,WL

2080236 (M.D. Pa. May 15, 2017)]
• A non pork-free (non-gelatin) Influenza vaccine
• high 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
– Norway
 Reasonable Accommodation
• Legitimate reasons must also be given by employees to resist
vaccination.
• In Fallon v. Mercy Catholic Med. Ctr. of Se. Pa, 877 F.3d 487, 493 (3d
Cir. 2017), an employee sought to rely on religious grounds to refuse
a Flu vaccine as he believed that, one should not harm their own
body and that the vaccine may do more harm than good. The
employee’s grounds were dismissed as it was held to be a purely
medical belief and not a religious one.
• In Hustvet v. Allina Health System, 283 F. Supp. 3d 734 (D. Minn.
2017), the Court rejected an employee’s reasons for refusing
vaccination for medical reasons pertaining to her existing allergies as
she was not able to produce sufficient medical evidence to
substantiate such grounds
Reasonable Accommodation
• Measures should therefore be implemented to reasonably
accommodate its employees’ reasons for refusing
vaccination.

• Such accommodation should not impose an undue hardship

on the employer’s business.

• An accommodation would constitute an undue hardship if

it:
• imposes more than a de minis cost on the employer
• would cause or increase safety risks of legal liability for the employer
 Reasonable Accommodation
• In Robinson v. Children's Hospital Boston, WL 1337255 (D. Mass.
Apr. 5, 2016), 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 staffs in a patient-care position. As the
employee’s duties required her to be in close-proximity with
patients, the Court held that to accommodate her request to
remain in a patient-care position vaccination free would create an
undue hardship; as it would have increased the risk of transmitting
influenza to the Hospital’s vulnerable patient population.
Consequently, 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
 Reasonable Accommodation
• The following measures were also regarded as a reasonable
accommodation of an employee’s reason to refuse vaccination
• The proposal of a rota system for the three colleagues, to ensure
that one person was always on-site while the other two worked
remotely, - given that most of the role could be performed by
computer and a significant portion of the online work could have
been progressed remotely [CA-00036314-001, Irish Workplace
Relations Commission]
• Offering a pork-free (non-gelatin) Influenza vaccine to a Muslim
employee who refused vaccination on religious grounds [Robinson v.
Children's Hospital Boston]
• 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
 Reasonable Accommodation
• A reasonable accommodation can never involve the
elimination of an essential function of a job
• Stevens v. Rite Aid Corporation, 851 F. 3d 224 – pharmacist essential
function included administering vaccinations – he was needle phobic
and could not do so without fainting – Court held no reasonable
accommodation possible as it was his essential function
• An Employer should –
• meet with the employee.
• request information about the employee's condition and limitations;
• ask the employee what accommodation he/she wants;
• showing some sign of having considered her request;
• and offer and discuss available alternatives when the request is too
burdensome.
Conclusion
Conclusion
• If an employer were to implement a mandatory vaccination
policy at its workplace, the factors earlier should be
thoroughly considered before making such a decision.
• Unless compulsory vaccination is an inherent requirement
in the workplace, employers should consider encouraging
and incentivize employees to obtain the vaccine on a
voluntarily basis, rather than mandating it. By doing so, the
employees’ interest would still be protected while
maintaining the balance of ensuring a safe working
environment
 Questions?

Amardeep Singh Toor

ast@lh-ag.com
03-6208 5878/ 016-4727554