Following the Movement Control Order (“MCO”) which was announced by the Prime Minister on 16th March 2020, the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 was gazetted on 17th March 2020 declaring all states and federal territories in Malaysia as infected local areas.
The Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 (“Regulations”) were subsequently gazetted on 18th March 2020, setting out the restrictions imposed pursuant to the MCO.
The applicable provisions in the Regulations which are to be considered by an employer/business owner in arriving at a decision whether to continue operations during the MCO period from 18th March 2020 to 31st March 2020 are Regulations 3 and 5.
Regulation 3 states that no person shall make any journey from one place to another place within any infected local area except for the following purposes:
- To perform any official duty;
- To make a journey to and from any premises referred to in Regulation 5;
- To purchase, supply or deliver food or daily necessities;
- To seek healthcare or medical services; or
- Any other special purposes as may be permitted by the Director General of Health.
Any form of gatherings, save and except for those permitted pursuant to Regulation 3(3), are not allowed.
Although “official duty” is not defined in the Regulations, this should be read in the context of Regulation 5(1) which states that premises which are allowed to remain open during the MCO period are those which provide “essential services”.
As for other premises providing “non-essential services”, Regulation 5(2) states that these premises may only be opened subject to prior written permission from the Director General of Health and any conditions imposed as he thinks fit.
The term “essential services” is defined in the Schedule to the Regulations as :
- Banking and finance
- Electricity and energy
- Fire
- Port, dock and airport services and undertakings, including stevedoring, lighterage, cargo handling, pilotage and storing orbulking of commodities
- Postal
- Prison
- Production, refining, storage, supply and distribution of fuel and lubricants
- Healthcare and medical
- Solid waste management and public cleansing
- Sewerage
- Radio communication including broadcasting and television
- Telecommunication
- Transport by land, water or air
- Water
- E-commerce
- Defense and security
- Food supply
- Wildlife
- Immigration
- Customs
- Hotels and accommodations
- Any services or works determined by the Minister as essential or critical to public health or safety.
It is also important to note that Regulation 5(1) mandates the number of employees and patrons at any premises providing essential services to be kept at a minimum.
As stated in Regulation 7(1), any person who contravenes any provision of the Regulations shall, on conviction, be liable to a fine not exceeding RM1,000.00 or to imprisonment for a term not exceeding 6 months or both.
If an offence is committed by a body corporate, any person, who at the time of the commission of the offence was a director, manager, secretary or other similar officer of the body corporate or was purporting to act in any such capacity or was in any manner or to any extent responsible for the management of any of the affairs of the body corporate or was assisting in such management may be charged severally or jointly together with the body corporate. Where the body corporate is found liable, such person shall be deemed guilty of the offence unless he is able to prove that the offence was committed without his knowledge, consent or connivance and that he took all reasonable precautions and had exercised due diligence to prevent the commission of the offence.
Contributed by the Employment and Industrial Relations Practice Group.
R. Ravindra Kumar (Partner)
(E): ravindrakumar@rdl.com.my
(T): +603-2632 9863
Tham Li Vyen (Partner)
(E): livyen@rdl.com.my
(T) +603-2632 9875
Prasath Thanaraju (Associate)
(E): prasath@rdl.com.my
(T): +603-2632 9935
Lam Jia Jun (Associate)
(E): jiajun@rdl.com.my
(T): +603-2632 9956