Knowledge Highlights 2 June 2021
On 28 May 2021, the Prime Minister of Malaysia announced the imposition of a “total” lockdown on the whole of Malaysia for two weeks from 1 June to 14 June 2021 (“Announcement”). The decision was taken to impose stricter restrictions in light of the worsening COVID-19 situation in Malaysia, with daily cases surpassing the 8,000 mark and more than 70,000 active cases.
Based on the Announcement, the “total” lockdown will transition gradually to a relaxation of restrictions as follows:
- Phase One of the lockdown will involve the full closure of almost all social and economic sectors for two weeks starting from 1 June 2021. All sectors save for essential economic and service sectors will not be allowed to operate during phase one of the lockdown;
- Phase Two of the lockdown will commence and last for a period of four weeks if phase one of the lockdown is successful in reducing the number of COVID-19 cases. The Government may allow the reopening of some sectors, in particular, those sectors that do not involve large gatherings and where compliance with social distancing is possible; and
- Under Phase Three of the lockdown, most economic sectors will be allowed to operate subject to strict Standard Operating Procedures (“SOPs”) as well as certain restrictions imposed on physical attendance at work. Social activities will not be allowed during phase three of the lockdown.
The decision to move from one phase to another will be subject to the outcome of risk assessments conducted by the Ministry of Health and evaluations will be made based on the surrounding circumstances at the relevant time, such as the number of COVID-19 cases and hospital capacity across the country.
The regulatory basis for the measures announced by the Prime Minister in relation to Phase One of the lockdown may be found in the following regulations issued under the Prevention and Control of Infectious Diseases Act 1988 (“PCID Act”):
- the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 2) Regulations 2021 (“PCID Regulations”); and
- the Prevention and Control of Infectious Diseases (Compounding of Offences) (Amendment) (No. 7) Regulations 2021.
We have set out below some of the salient provisions pursuant to the PCID Regulations.
Prohibition on movement and gatherings
Restrictions on travel within and between “infected local areas”
Movement within an “infected local area”, from one district to another district within any “infected local area” or from one “infected local area” to another is prohibited. This essentially prohibits travel within and between the states and federal territories of Malaysia, which have been declared to be “infected local areas”.
The only exceptions are travelling for the following purposes:
- to purchase food, beverages, medicine, dietary supplements or daily necessities;
- to supply or deliver food, beverages, medicine, dietary supplements or daily necessities;
- to seek healthcare or medical services, COVID-19 detection tests, immunization or emergency treatment;
- to purchase goods or procure any essential services;
- to provide any essential services or to perform any duty in relation to any essential services;
- to perform any official duty, judicial duty or any other duty authorised by an authorised officer;
- to provide humanitarian aid to any person affected because of any natural disaster; or
- to attend learning at any learning institution or to perform any duty at any learning institution.
The term “essential services” has been defined to mean the essential services as specified in the Schedule to the PCID Regulations, and includes any activity and process in the supply chain of such essential services. We have further elaborated on the meaning of “essential services” below.
The PCID Regulations also set out conditions for travelling, for example, a person is generally restricted to travelling within a 10 kilometre radius from his or her place of residence in order to purchase food or daily necessities, or to seek healthcare or medical services (or to a place nearest to his residence if such amenities are not available within a 10 kilometre radius).
Prohibition on movement to places subject to enhanced movement control order
The PCID Regulations provide that no person may enter or exit from a place that is subject to an “enhanced movement control order” except any person who is providing healthcare and medical services or who has been given permission by an authorised officer. The term “enhanced movement control order” here refers to directions given by an authorised officer under Section 11(3) of the PCID Act. Section 11(3) of the PCID Act provides broad powers to an authorised officer to direct persons living in an infected local area to subject themselves to such measures as the authorised officer considers necessary to control the disease.
Control of gatherings and processions
Gatherings for religious, sports, recreational, social or cultural purposes are prohibited. Notwithstanding the above, a person may gather or be involved in a gathering for religious purposes or a funeral ceremony subject to any directions issued by the Director General of Health (“Director General”). In addition, participation or involvement in any processions are prohibited.
Movement for purpose of examination
Any person who is required to sit for any examination “determined” [sic] by the relevant authority at any learning institution or any professional body, or is involved in providing lessons for the preparation of such examinations or in the conduct of any such examinations is allowed to move from one place to another place within any infected local area, from one district to another district within any infected local area or between infected local areas.
Movement due to special or particular reason
If a person needs to move from one place to another place within any infected local area, from one district to another district within any infected local area or from one infected local area to another infected local area for a special or particular reason, that person must obtain prior written permission of the police officer in charge of the police station nearest to the residence of such person for such movement. No specific definition has been given to the term “special or particular reason”.
Reducing capacity on public transport
Notwithstanding the total maximum capacity of the number of passengers that may be carried on board any land, sea or air public transport, a holder of any land, sea or air public transport licence or permit to carry passengers must ensure that the number of passengers carried is subject to any directions issued by the Director General.
Mandatory health examination
Any person entering Malaysia from overseas may be required by an authorised officer to undergo a health examination upon his arrival in Malaysia.
Employer to ensure that foreign employee undergoes COVID-19 test
An authorised officer may direct any employer to ensure that foreign employees undergo COVID-19 detection testing and the employer will in such circumstances be required to bear the costs for such test. The term “foreign employee” for this purpose refers to a holder of a Visit Pass (Temporary Employment) issued under Regulation 11 of the Immigration Regulations 1963.
There is also a general provision allowing the Director General to issue any directions in any manner, whether generally or specifically, to any person or group of persons to take such measures for the purposes of preventing and controlling any infectious diseases within any infected local area. The PCID Regulations provide that directions issued by the Director General pursuant to this provision will be “published in [sic] the website of the National Security Council”.
Essential services allowed to operate
The Schedule of the PCID Regulations lists the following as essential services:
- food and beverages including animal feed
- healthcare and medical care including dietary supplement, and veterinary services
- security, defence, emergency, welfare and humanitarian aid
- solid waste management and public cleansing and sewerage
- transport by land, water or air
- port, dock and airport services and undertakings including stevedoring and transferring of cargo, pilotage, storing or bulking commodity
- communications including media coverage, telecommunications and internet, broadcasting for the purposes of delivery of information, news and the like, and postal and courier
- banking, insurance, takaful and capital market
- e-commerce and information technology
- production, refining, storage, supply and distribution of fuel and lubricants
- hotel and lodging for the purpose of quarantine, isolation, workers’ lodging in essential services, and not for tourism
- construction, critical maintenance and repair works
- forestry services, limited to enforcement, and wildlife
- logistic, limited to delivery of essential services
- production services (aerospace, materials for packaging and printing in relation to food and beverages and healthcare and medical materials, personal care goods and cleaning materials, healthcare and medical products, personal protective equipment, components for medical devices, electrical and electronic goods, oil and gas, machine and equipment in relation to medical treatment and health services and good and beverages products, textile for production of personal protective equipment, fuel and lubricants)
- agriculture, fisheries and husbandry
- farming and commodity (palm, rubber, pepper and cocoa)
- major public infrastructure construction works
- building construction works that provide complete workers’ accommodations on construction sites or centralised labour quarter
- trading and retailing (basic essentials, personal care and animal care, laundry, petrol station including retail store at petrol station, car workshop, maintenance and spare parts, wholesaling and distribution for essential services products)
General Standard Operating Procedures
On 1 June 2021, the Malaysian National Security Council (“MKN”) published general standard operating procedures (“General SOPs”) in relation to phase one of the lockdown on their website.
The General SOPs set out rules with regard to, inter alia, the control of movement (e.g. only two persons per household are allowed to leave home to purchase essentials), health and safety related SOPs (e.g. customers and visitors must “check in” to places using the MySejahtera app prior to entering any premises), and the permitted capacity of private vehicles and public transport.
Most significantly, the SOPs set out general work from home (“WFH”) directives in relation to the civil service as well as the private sector.
Insofar as the civil service is concerned, the General SOPs provide that:
- the WFH initiative does not apply to services involving “frontliners”, security, defence and enforcement;
- attendance at the office is only permitted in relation to the performance of “necessary” services and members of the workforce physically present at the office should not exceed 20% of the total number of the workforce at any time. Such “necessary” services refer to work that is not capable of being performed from home such as payment of contracts/invoices/salaries, payment/ distribution of monthly or periodic aid payments to the public, maintenance and security of the premises, IT or technical management for the purpose of system maintenance and online meetings and document preparation involving the meetings of the Cabinet of Ministers.
Insofar as the private sector is concerned, the General SOPs set out the following rules:
- all essential services approved by the relevant ministry or agency to operate during the lockdown period are “subject to” the approval letter issued by the relevant ministry or agency. Based on this, and notwithstanding that there does not appear to be such a requirement under the PCID Regulations, it appears that companies involved in the provision of essential services are required to obtain an approval letter from the relevant ministry or agency. Movement of the relevant employees will be subject to the production of an approval letter (granted by the relevant ministry or agency) or employee pass or employer confirmation letter; and
- attendance at the workplace for staff involved in the provision of essential services (including operations and management staff) is limited to 60% of the total workforce.
The General SOPs also set out a “negative” list of activities that are prohibited during phase one of the lockdown. For example, businesses relating to spas and reflexology and night clubs are not permitted to operate whilst activities such as weddings, conventions and exhibitions, tourism activity etc. are expressly prohibited in the General SOP.
A technical question does arise as to the legal validity of the General SOPs issued by MKN, as these were not issued pursuant to the PCID Act. Under the PCID Act and the PCID Regulations, general powers to give directions have been conferred on “authorised officers” and the Director General. Although there is a reference under the PCID Regulations to directions of the Director General being “published on the MKN website”, the MKN website does not formally indicate that the General SOPs available thereon do in fact constitute directions of the Director General.
The General SOPs are available at the MKN’s website at https://asset.mkn.gov.my/web/wp-content/uploads/sites/3/2019/08/SOP-AM-PKP-Seluruh-Negara-Kemaskini-31-Mei-2021.pdf.