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27 May 2020
On 8 May 2020 the Ministry of International Trade and Industry (MITI) issued a series of frequently asked questions (FAQs) providing guidelines on, among other things, the re-opening of various economic sectors, including the construction sector. Further details and guidelines relating to the construction sector were provided by the Ministry of Works (KKR) in a series of FAQs on 8 May 2020.(1)
This article sets out the impact of the COVID-19 pandemic, the Movement Control Order (MCO) and the Conditional Movement Control Order on the legal position of migrant workers in Malaysia, particularly in the construction sector. Pressing questions including the risk of deportation of undocumented workers and the current local stigma are addressed and highlighted. This article covers possible restrictions, procedures and challenges faced by the following categories of migrant worker in Malaysia:
Mandatory health screening before commencement of construction works
Companies could commence operations on 4 May 2020 without an approval letter from MITI. While screening of local (Malaysian) workers is not mandatory, the KKR has clarified that both foreign workers and employers (non-citizens) in the construction industry must undergo COVID-19 screening.(2) This may be done via the Social Security Organisation's (PERKESO's) Prihatin Screening Programme, as stated in the construction industry's standard operating procedure. In relation to foreign workers (non-citizens) in other industries, employers must comply with the government's directives and announcements as they are released.(3)
Only foreign workers and employers (non-citizens) that have tested negative for COVID-19 can commence work. Any workers suspected of having COVID-19 symptoms must be isolated immediately and undergo COVID-19 screening.(4)
Free screening of workers is accessible to employers registered with the PERKESO at PERKESO-appointed service provider premises.(5)
Workers who have just returned from overseas cannot work or enter construction sites for 14 days from the date of entry to Malaysia.(6)
Who bears medical costs and alternative quarantine accommodation costs?
Where a foreign worker registered with the PERKESO is infected with COVID-19, treatment must be carried out at a government hospital and medical costs will be borne by the government. Individuals who had prior contact with a patient must undergo quarantine subject to the Ministry of Health's arrangements.
Where a worker who was in close contact with an infected worker due to work must be quarantined outside a government hospital and their private residence, the quarantine centre preparatory costs will be borne by their employer. Any other costs (ie, logistics from the government hospital or clinic) will also be borne by the employer.(7)
Where a worker residing in centralised labour quarters (CLQ) contracts COVID-19, the costs of carrying out close contact quarantine of workers in the CLQ by providing alternative accommodation will be borne by the employer.(8)
In its unwavering and persistent goal in curbing the unprecedented COVID-19 pandemic, the government listened to the views of relevant stakeholders (eg, the Malaysian Employers Federation (MEF), which previously raised concerns over the mandatory obligation imposed on employers to carry out COVID-19 screening on all foreign workers). The MEF observed that a swab test costs at least RM500 and with the 2.3 million registered foreign workers in the country, "employers would go out of business" if they had to cover the costs, said MEF Executive Director Datuk Shamsuddin Bardan.(9) While initially adamant on its stance in placing the COVID-19 screening costs on employers,(10) as highlighted above, employers registered with the PERKESO's Prihatin Screening Programme now stand to benefit from the free screening services provided.
Renewal of work permit during MCO
Where a foreign worker is present in Malaysia during the MCO and their temporary work pass (PLKS) expires during the MCO period and where(11) their employer intends to extend the existing PLKS period, the renewal application may be submitted online at www.clab.com.my or by contacting the Construction Labour Exchange Centre Berhad (CLAB) helpline at 019 2119599, 07 2359599 or 04 3979599 for further information. Only renewal of the second to tenth year of a PLKS can be carried out online. The approval for the online application should take two days (subject to complete documents being submitted).(12)
On the other hand, where a foreign worker intends to return to their country of origin through the Check Out Memo, they can apply at all entry and exit doors without renewing their working pass. Prior arrangements for the worker's return to their country of origin should be managed by their employer. Notification to the CLAB is mandatory for the update of a worker's record in the CLAB system.
Foreign nationals' status post-MCO
Following the prime minister's announcement on 1 May 2020, the Immigration Department resumed its operations in stages. The Security and Passport Division resumed its operations on 4 May 2020 at the immigration headquarters and immigration main office in selected states. The Expatriate Services Division, the Visa, Pass and Permit Division and the Foreign Workers Division resumed operations on 6 May 2020 at the immigration headquarters and all other remaining services resumed operations on 13 May 2020 at all immigration offices in Malaysia.
The Immigration Department's general statement dated 2 May 2020 provides that, among other things:
To date, the government has adopted a hard stance on undocumented migrant workers. It is prepared to deport undocumented migrant workers arrested at enhanced movement control areas to their country of origin.(13) The sequence of events is observed as follows. Arrested undocumented migrant workers would first be placed in immigration detention centres, subject to space limitations. In the event that the immigration detention centres are full, they will then be placed in special prisons under the purview of the Ministry of Home Affairs (MOHA). The corollary to this is believed to be deportation of these undocumented workers.(14)
The MOHA has thus far stated that it is prepared to deport only undocumented migrant workers arrested at enhanced movement control areas. The same cannot be said about undocumented migrant workers arrested outside such areas, where they would most likely end up in the special prisons under the purview of the MOHA.(15)
The above practice differs from the position stated by the senior minister for security and minister of defence when he urged that everyone including migrant workers who attended the tabligh gathering at the Sri Petaling Mosque in February 2020 be screened for COVID-19 without fear. The focus back then was not on their documents but rather on whether they were COVID-19 positive.(16)
On 9 May 2020 the Malaysian Bar called on the government to "consider halting the current enforcement action and to focus instead on ensuring that all persons alike co-operate to reduce and stop the transmission of COVID-19". While the inspector general of police stated that large-scale joint operations were necessary to find undocumented migrant workers to prevent, among other things, the spread of the virus elsewhere, the Malaysian Bar cautioned that such operations will result in evasion of the authorities or avoidance and refusal to seek medical treatment for fear of their status.(17)
The issue of undocumented migrant workers in Malaysia is akin to the 'chicken and egg' metaphor. On the one hand, the government faces immense pressure in to ensure that all migrant workers undergo COVID-19 screening in light of the increasing number of cluster cases identified at various construction sites, workers' private accommodation or CLQs. On the other hand, a number of these migrant workers remain undocumented for various reasons and would, in the usual course of events, be entangled with the Immigration Department's enforcement initiatives. This invokes fear which results in the refusal and avoidance of migrant workers to come forward to be screened.
The Malaysian Bar's call to the government to halt ongoing enforcement actions and focus instead on obtaining cooperation should be explored. As pointed out by the Malaysian Bar, the plethora of reasons for the presence of these undocumented migrants ranges from expired permits which could not be renewed during the MCO period, asylum seekers who are pending certification from the UN high commissioner for refugees or victims of long-term systemic failures.
Echoing the Malaysian Bar's call are manufacturers and non-governmental organisations such as the Federation of Malaysian Manufacturers, Mercy Malaysia and Tenaganita. The common message from these organisations is the call for an amnesty programme to enable undocumented migrant workers to undergo COVID-19 screening without the fear of being detained.(18)
It is hoped that the government will pay heed to these calls by the various bodies in order to avert the outbreak of COVID-19 in large clusters among the migrant worker communities in Malaysia.
(9) See here.
(10) See here.
(13) See here.
(14) See here.
(16) See here.
(17) See here.
(18) See here.
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