Can an employer fire an employee for refusing Covid 19 vaccination?

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Can an employer fire an employee for refusing Covid-19 vaccination?

It is a difficult question.

We need to discuss it from several points of view.

1. Duties of an Employer

Laws around the world require an employer to provide a safe work environment.

Suppose I own a factory with 2,000 workers. The nature of the work may require working in close contact.

A responsible employer will ensure his workers are vaccinated to protect the others. But not all employees wish to be vaccinated.

Yet, the Employer cannot force them to be vaccinated.

The government requires your consent to vaccinate you.

It is a voluntary exercise.

For an employer to demand that his employees vaccinate themselves, failing which, he might terminate their services - would therefore be unreasonable.

Second, it would depend on the nature of the job.

For example, if teachers who interact with children of all ages on a daily basis refuse to vaccinate, there is a real risk they might infect unvaccinated teachers and their pupils.

Or nurses and doctors treating Covid-19 patients who refuse to vaccinate.

Can the government make it mandatory, that if a medical staff refuse, they can be fired?

An employee would argue that it is harsh.

So, you can see a conflict here.

2. Complaints of Employees

Some refuse to be vaccinated because of religious reasons.

Others argue that despite double vaccination, people are still being infected and admitted to hospitals.

An employee’s refusal may even be on reasonable grounds.

A pregnant woman’s refusal cannot be a good reason to fire her.

Again, those who suffer ‘immunocompromised’ or other meidcal conditions are prevented from being vaccinated.

3. What does the law say?

Article 5(1) of the Malaysian Federal Constitution guarantees the right to life.

The 1996 Court of Appeal case of Tan Tek Seng, and the 2011 Federal Court case of Yusof bin Sudin ruled that the right to life includes the right to ‘livelihood'.

Therefore, an employer cannot remove the security of a person’s occupation so easily.

However, there is a law that deals with Covid-19 situations.

When there is an outbreak of an infectious disease, the Minister of Health may do several things under Section 11 of the Prevention and Control of Infectious Diseases Act 1984 (PCIDA).

He can declare an area as an ‘infected local area’ and make regulations to control the spread of any infectious diseases.

The minister may also force people in that area to be subject to immunisation.

Any authorised government officer may take any other measure necessary to control the disease.

However, the government has not made any such regulation.

So, the government has not made vaccination compulsory across the country.

Therefore, no employer can mandate employees to be vaccinated.

4. Other Countries

In Australia, the argument is that forcing an employee to be vaccinated amounts to ‘discrimination’. The only defence of an employer is to show that his demand is ‘reasonable’.

What is reasonable would depend on the facts.

For instance, it will be completely unreasonable for a doctor treating Covid 19 patients to be unvaccinated.

Also, air flight crew, border control officers, or hotel workers, who are in close contact with people.

Then it would be reasonable for employers to insist that employees be vaccinated.

5. Practical Considerations

Employers need to educate their employees on the dangers of being unvaccinated.

Even though those who are double-vaccinated may be infected, it is proven that the chances of recovery are much higher than the unvaccinated.

Second, to fire an employee, an employer must have in law, ‘just cause or excuse’.

Hence, if an employee refuses to be vaccinated, that cannot be, in law, a ‘valid cause or excuse to fire an employee’; unless the employee works in certain areas which require mandatory vaccination.

My view is vaccination is a voluntary act of submission.

Unless the law makes vaccination mandatory, no employer can fire an employee who refuses to be vaccinated.

GRATITUDE:
I thank the Japanese artist, En. Samad Hassan, Mr VK Raj, Miss KN Geetha, Mr. JD Prabh Sing, Mr GS Saran & Miss RC Nevina.

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