Malaysia - Haze Emergency — Are Employers Obliged To Declare An Off-Day?
Legal News & Analysis - Asia Pacific - Malaysia - Labour & Employment
20 September, 2019
The haze situation that has engulfed the nation has been deteriorating lately. As at 17 September 2019, the Air Pollution Index (API) in Sri Aman, Sarawak achieved a reading of 3691. In the event the API reading exceeds 500 in a particular area, a state of emergency may be declared by the government2 (“haze emergency”).
In view of this, a question that arises from the employment law standpoint is whether employers are obliged to declare an off-day for its employees pursuant to a declaration of an emergency.
The Federal Constitution provides that the Yang di-Pertuan Agong may issue a Proclamation of Emergency where the security, or the economic life, or public order in Malaysia (or any part thereof) may be in threat3. A Haze emergency on the other hand, would likely be in a form of an executive / administrative order issued by the Prime Minister.
The Employment Act 1955 and Holidays Act 1951 do not prescribed any statutory obligation on employers to declare rest days in the event of a haze emergency.
However, in 2005, the then Prime Minister, Datuk Seri Abdullah Ahmad Badawi, declared a state of em1ergency in Kuala Selangor and Port Klang when the API breached the 500 mark4. Amongst the orders pursuant to the emergency declaration was a closure of private offices, save for essential service industries5. In the event that an executive order of such nature is issued by the government, it is highly advisable that employers comply with the order.
Apart from that, employers must also bear in mind that they are under a legal obligation to provide a safe work environment for its employees under the Occupational Safety And Health Act 1994 (“OSHA”). The Department Of Occupational Safety And Health (“DOSH”) had issued a guideline for the protection of employees against haze6. In the event an emergency is declared, it would be unsafe for employees to continue working on-site. Employers should also consider whether they have any policy on the granting of “Disaster Leaves” as part of the employees’ terms and conditions of employment.
In short, the on-going haze is expected to cause workforce issues in the company, with employees being absent from work. Barring any declaration of a haze emergency, employees are still expected to attend work, unless they are permitted under company policy to take disaster leave or certified to be medically unfit for duties due to the effects of haze. Employers may also fall back on policies that permit employees to work from home as a measure to prevent a decline in work productivity.
For further information, please contact:
Sivabalah Nadarajah, Partner, Shearn Delamore & Co
3 Article 150 (1) of the Federal Constitution