On the 16th March 2020, the Malaysian government announced the Movement Control Order, effective from 18th March 2020 (Wednesday) until 31st March 2020, a measure to contain the spread of novel coronavirus (“Covid-19”) in view of the recent spike in the number of cases in Malaysia.
This is inevitable as there is currently no vaccine for Covid-19. The best way to prevent infection is to avoid being exposed to the virus and thus prevent further spreading.
As pointed out by the Prime Minister, such measure is implemented under Prevention and Control of Infectious Disease Act 1988.
This article will assist employers and businesses in providing advice on handling the impact of Covid-19 at work.
Guidance for Employers
We refer to a list of Guidelines On Handling Issues Relating To Contagious Outbreaks Including 2019 Novel Coronavirus (Covid-19) Infections (“the Guidelines”) published by the Department of Labour of Peninsular Malaysia on 7th February 2020, which provides the answers to the following situations:-
If an employee becomes unwell in the workplace or has travelled to China or other affected countries
Pursuant to Section 60F of Employment Act 1955 (“EA 1955”), employer should instruct employees to be examined immediately by a registered medical officer at the expense of the employer.
Depending on the results of examination, to be dealt with in accordance to the answers in paragraphs below.
If an employee has symptoms and suspected of Covid-19 infection
At this critical time, employee should be advised to isolate themselves and not attend work if they are a confirmed carrier of Covid-19, or displaying symptoms such as
- high temperature,
- continuous cough,
- difficulty in breathing or
- fever, or
- have been in contact with carriers, or
- in any event suspected of Covid-19 infection.
It is clearly stated in the Guidelines that the employer cannot prevent any employees from attending work if no quarantine orders are issued by any registered medical practitioner, however, employers are always allowed to instruct any unwell employee, especially those displaying symptoms of Covid-19 infection to refrain from coming to the workplace by providing paid sick leave to the employee under Section 60F of EA 1955.
If an employee has or tested positive for Covid-19
Generally, employees who are unable to work because of Covid-19 infections are likely to be entitled to paid sick leave or hospitalization entitlement (up to 60 days in aggregate) during their absence under Section 60F of EA 1955.
Similarly, this shall be applicable to employees receiving quarantine orders from a registered medical officer, regardless of the employee being quarantined at home or at the hospital, as long as it is certified by a registered medical officer.
According to the Guidelines, Employers are encouraged, but not obligated, to provide paid leave to employees with quarantine order exceeding sick leave or hospitalization entitlement.
Should employer instruct employees, to utilize annual leave entitlement or take unpaid leave during the quarantine period?
The answer is clearly ‘No’ according to the Guidelines.
Should employer instruct employees to utilize annual leave entitlement or take unpaid leave during the period when the employer needs to close the workplace due to the Movement Control Order?
There is no answer provided in the Guidelines or any other guidance so far.
It is our view that where work can be done at home, the employer could:-
(a) ask the employee to take any related work documents home with them, so that they can carry on working with the allowance of access to the office network
(b) arrange tasks that can be done at home for staff who do not work on computers
If an agreement to work from home is struck between the employer and employee, the employee should get their usual pay.
In circumstances where it is impossible for employees to work from home or no arrangements could be made so that employee can potentially work at home, it is noted that most employees will be given notice to take unpaid leave, thus be eligible to financial assistance of RM600 each month for up to six months from the government of Malaysia.
We view this is not legally viable because such notice of unpaid leave will resulted in breach of the employment contract, unless the employment contract provides for ‘close of workplace’ being force majeure event due to this ‘unavoidable circumstances’ thus allow for employers to suspense the salary pay out.
Other alternatives could be found in our article: Covid-19: Options for Employers in Malaysia.
It is noted in some other jurisdiction like in the UK, there are regulations made to provide that in circumstances where employee have to comply with the government ‘stay at home’ guidance and is unable to attend work, will be deemed to be incapable of work for the purposes of claiming statutory sick pay.
Such statutory sick pay cost will be refunded to small and medium-sized employers by the government, albeit be limited to two weeks per employee. We hope the authority be will look into this better assistive mechanism (emphasis added).
In the case where the employer order ‘stay at home’ or an employee ‘self-isolate’ on their own initiative which is a purely precautionary measure.
As pointed out in the Guidelines, employers are always allowed to instruct any unwell employee, especially those displaying symptoms of Covid-19 infection to refrain from coming to the workplace by providing paid sick leave or similar paid leave to the employee.
In the case of someone who self-isolates as a precautionary measure to prevent the spread of Covid-19 (who might not display any symptoms at all), they may then go on annual leave, or unpaid leave should the earlier is fully utilized.
Conclusion:
Lastly, it must be emphasized the practice of good hygiene is useful at all times, not only during the endemic of this virus.
About the Author:
This article was written by Chia Swee Yik, Partner of this Firm, who endeavors to provide practical advice on employment law.
Feel free to contact us using the form below if you have any queries.