Employers Can't Force You To Take Annual Leave & 4 Labour Rights You Must Know During MCO

In his nationwide MCO announcement on Monday, 16 March, Prime Minister Tan Sri Muhyiddin Yassin said only the companies that are involved in providing essential services can carry on with their businesses, while the rest are legally bound to remain closed until 31 March.

The MCO left employees who work in non-essential service companies in distress, worrying if they are still entitled to full salaries or can employers force them to take annual leaves during this period.

In a guideline published by the MOHR on Facebook, employers are not allowed to force their employees to take annual leaves during the quarantine period, citing that annual leave is an employee's right.

Each employee is entitled to have at least eight days of annual leave a year, and more days are given to those who have served the company longer.

In an interview with human resources lawyer Firdaus Zakaria, Astro Awani reported that all employees affected by the MCO must be paid with salary, citing that it is in accordance with Employment Act 1955, Prevention and Control of Infectious Diseases Act 1988, and Police Act 1967.

"This is an order for all employees to carry on with work as usual," Firdaus explained.

"The only difference is employees are now working from home. It is not a leave of absence."

"Employers still need to pay employees their salary just like before, only the allowance is different because it is not a must to pay."

Firdaus also contended that employees who cannot perform their jobs at home should be paid in full salary, as that they are merely following the government's order to be in quarantine.

The Star reported the MOHR as saying that despite employees currently being under isolation, employers must grant employees sick leave when requested. Every employee is entitled to have 14 to 22 days of such leave.

The ministry added that employers can order their workers who are unwell not to attend work, but on a condition of granting them paid leave.

If employers are found to have breached the law, they can be charged under Section 60(F) of the Employment Act.

Despite what is mentioned in the earlier point, it does not mean that employers cannot order you to take unpaid leave. This is subject to a case-by-case basis as every employee has a different employment contract.

Donovan & Ho, a local law firm that is an expert in employment law, noted that if employers opt to put employees on unpaid leave, they might put themselves at risk for breach of contract.

Therefore, you are advised to go through your employment contract to understand your rights.

Besides, the government has allocated RM120 million to hand out to employees who are told to take unpaid leaves during the MCO. According to Malay Mail, eligible recipients can receive RM600 each month, up until a maximum of six months.

The initiative is taken under the economic stimulus package.

In the same guidelines published on Facebook, the ministry said employers should take appropriate steps to prevent the termination of employment as recommended in the Code of Conduct for Industrial Harmony.

Before removing any employees, the company should first take any of these steps:
- Limit overtime.
- Reduce the number of working days in a week or reduce the amount of work in a week.
- Reduce daily working hours.
- Perform temporary lay-offs by temporarily shutting down operation and offer reasonable pay as well as help them to secure temporary employment elsewhere until the company's operation can resume.
- Reduce workers' wages (pay cut) in a fair manner at all levels - it must be done as a last resort after other cost-saving measures have been implemented.

If the adverse circumstances continue and employers are forced to terminate some employees, the company management should follow the guideline on retrenchment management found on the ministry's website.

Employers are required to file a report to the MOHR for at least 30 days before taking any of the following actions:
- Retrenchment,
- Voluntary separation,
- Temporary termination (lay-off), and
- Pay cut.

The MOHR advised employers to follow the instruction as those who fail to adhere can be fined up to RM10,000 for each offence.