Covid-19

FAQs by Ministry of Human Resources on the Movement Control Order Volume 3

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The Ministry of Human Resources Malaysia has released “Soalan Lazim (FAQs) Mengenai Perintah Kawalan Pergerakan Kementerian Sumber Manusia Bilangan 3” on 31 March 2020.

Click here to download the FAQs.

The followings are the English translation of the said FAQs: 

1. Does an employer need to pay salary during the 14 days extension of the Movement Control Order (MCO) starting from 1st April 2020 to 14th April 2020?
Yes, employee’s salary and the relevant fixed allowance should be paid, unless the allowance given related to attendance/travel (which is not being performed during this period).

2. Can an employer direct an employee to take annual leave or deduct employee’s annual leave for the period of 1st April 2020 to 14th April 2020 or for any days during this period?
Employers cannot compel the employees to take annual leave as the annual leave supposed to be taken at the discretion and request of the employees. 

3. What are the actions that can be taken by employer during this Movement Control Order (MCO) period?
During this MCO, employers are advised to take the following actions:

i. Employer must pay full salary and allowance during this MCO extension period.
ii. Depends on the consent of both parties, employers may offer the employees either:
a. Full paid leave;
b. Half paid leave; or
c. Unpaid leave

iii. If retrenchment of employees needs to be done, employer may refer to the Employment Retrenchment Guideline. This Employment Retrenchment Guideline and the Retrenchment Report (Borang PK) can be found in JTKSM website (www.jtksm.mohr.gov.my).

4. If the employer does not take the above actions, what action can be taken by employees?
Action that can be taken by employees is to file a complaint to the Labour Office near the place of employment.

5. Can an employer affected by COVID-19 take steps to reduce the number of employees or retrenchment?
Reduction of the number of employees or retrenchment is a result of the reduction of surplus on labour. In general, reduction of the number of employees or retrenchment is the prerogative of the employer. Having said that, in order to ensure that the process of reducing the number of employees is done in a fair manner, there are three main points to be followed by the employer, namely:

i. The reasons for the employer’s business affected by COVID-19 must be genuine;
ii. Employers are required to take measures to avoid a lay-off in advance, such as to reduce working hours, limit or freeze new hiring, limit overtime working, limit working on weekends or holidays, reduce salaries of employees, adopt the temporary lay-off measure; and 
iii. If a lay-off is inevitable, foreign employees need to be terminated first. If the lay-off involves local employees, the principle of LIFO (last in first out) must be complied with. Nevertheless, this principle may be waived if the employer has a solid justification for it. The employer must report the cessation of work to the nearest Labour Office 30 days before the date of implementation of the lay-off. Employers can obtain Guideline and Report on Lay-off (“Borang PK”) from the JTKSM website (www.jtksm.mohr.gov.my).

6. What has to be done if an employee is suspected of or has been tested positive for the COVID-19?
The employer must instruct all employees who work closely with the said employee to stay at home for 14 days to make sure that the infection does not spread. Prior to that, employees affected will be asked to identify all the individuals who work nearby (three to six feet) them in the last 14 days before they are suspected of COVID-19, so that the employer will have a complete list of persons who may be infected. Employers are required to maintain the confidentiality of the infected employee’s information without any divulgement. Besides that, the employer must carry out disinfection in the general workspace and the workspace affected. If the affected workspace is in a building or an area of shared office, the employer concerned must inform the building management so that they can take necessary precautions accordingly.

7. Can foreign workers holding the temporary foreign worker permit (PLKS), Expatriate Pass and MM2 return to their home country? 
Yes and subject to the conditions set by the Immigration Department of Malaysia. Please contact the KDN Operations Room at 03-88868110 / 03-88868126 for further information. 

8. If an employee is confirmed to be tested positive for COVID-19 can the employer provide unpaid leave to all employees?
Employers may provide leave to other employees to protect the health and safety of employees, where their leave should be paid and may not be cut. Employers also may not force employees to take unpaid leave. 

9. What can be done by daily wage workers during the period of the Movement Control Order (MCO), if they are not paid wages?
Please refer to the FAQ’s Employment Retention Program (ERP) that was issued by the Social Security Organisation (SOCSO) at 1300-22-8000 or on their website www.perkeso.gov.my 

10. If the employer in the non-essential service still operates without the written exception from the Director General of MOH, what action should be taken?
Any person can make report to PDRM / RELA / Department of Labour / Department Of Occupational Safety And Health nearby. 

11. What are the actions that can be taken by employee if the employer did not comply with Movement Control Order?
Employee can make report to the Police, RELA or Ministry of Human Resource (MOHR).

Report and enquiry can be made through these numbers:
i. 03 8889 2359 
ii. 03 8890 3404 
iii. 03 8886 2409 
iv. 03 8886 2352 
v. 03 8888 9111 
or email: 
i. [email protected] 
ii. [email protected] 
iii. [email protected] 


CALCULATION OF TIME

12. Is the MCO period that commenced on 18 March 2020 [PREVENTION AND CONTROL OF INFECTIOUS DISEASES (MEASURES WITHIN THE INFECTED LOCAL AREAS) REGULATIONS 2020] will be included in the calculation of 60 days period as provided under section 20 of Industrial Relations Act 1967?
MCO period that commenced on 18 March 2020 will NOT be included in the 60 days calculation that is provided under section 20 of Industrial Relations Act 1967. This setting is made to ensure employees comply with MCO and to give opportunity for the affected employees to file a dismissal representation after the MCO period ended. 

13. Is the MCO period that commenced on 18 March 2020 [PREVENTION AND CONTROL OF INFECTIOUS DISEASES (MEASURES WITHIN THE INFECTED LOCAL AREAS) REGULATIONS 2020] will be included in the calculation of time period under section 9 of Industrial Relations Act 1967?
MCO period that commenced on 18 March 2020 will NOT be included in the calculation of time period under section 9 of Industrial Relations Act 1967. This setting is made to ensure that parties involved (trade union and employer) comply with MCO and to give opportunity to the relevant parties to take action after MCO period ended.


MINISTRY OF HUMAN RESOURCES
31 MARCH 2020


For more insight into this area of law, please contact our Partners in the Employment & Industrial Relations Practice Group:
P Jayasingam
Wong Keat Ching
Thavaselvi Pararajasingam