In my previous post, I talked about possible caveats to the resumption of operation by additional economic sectors (“AES”) during MCO Phase 3, in particular those relating to the legal sector.
Since then, there have been several updates from the relevant authorities including a Standard Operating Procedure (“SOP”) for the legal sector which was released by the Legal Affairs Division of the Prime Minister’s department today.
More caveats can be observed from the recent SOP – only law firms premised in Covid-19 Green Zones are allowed to resume operations on-site. Further, the SOP applies only to conveyancing and corporate practices.
Conveyancing and Corporate practices only
As mentioned in my previous post, MITI had on 10 April released a media statement containing a list of AES that were allowed to resume operation. One of the grey areas in the media statement related to whether “perkhidmatan berkaitan guaman” covers law firms and if so, whether it covers all law firms. Since then, the Malaysian Bar had written to YB Dato’ Seri Mohamed Azmin Ali, Minister of MITI; and YB Dato’ Takiyuddin Hassan, Minister of PM’s Department (Parliament and Law) suggesting that law firms be allowed to operate during the MCO.
Today on 15 April, the Legal Affairs Department released a SOP for the legal sector, clarifying that only legal services relating to conveyancing and corporate practices (“cabang“) are allowed to resume operations. However, litigation and other practice areas as well as purely advisory services are not covered by the SOP. It is unclear whether this means litigation and other legal practice areas are precluded from operating during the MCO or that a different SOP and operation guidelines will apply to them.
These conveyancing and corporate practices are only allowed to operate on Tuesdays and Thursdays, from 10am to 4pm. Further, only a certain number of employees are allowed to work at any given day and time. This will be calculated based on the firm size (all staff included) as stated in their application to MITI. Other SOP requirements for operating law firms can be found in the SOP.
Green Zones only
Crucially, the SOP states that only firms located in Green Zones are allowed to operate. This would significantly cut down the number of firms that can operate during the MCO. The SOP also states that face-to-face services can only be provided to clients located in Green Zones and that clients outside of Green Zones cannot travel across zones.
Therefore, (subject to discretion of the authorities or further changes) one of the major caveats for law firms to resume operation during this MCO is whether its office premise is in a Green Zone, which begs the question:-
WHERE ARE THE GREEN ZONES?
As at 14 April, 12pm, only three (3) districts in West Malaysia remain as Covid-19 Green Zones – Yan in Kedah, Machang in Kelantan and Hulu Terengganu in Terengganu. The majority of Green Zones remaining to date are in East Malaysia; 8 districts in Sabah and 17 districts in Sarawak. (I suppose the SOP isn’t completely redundant, it’s just less useful to Peninsular Malaysia).
The Ministry of Health (“MOH”) categorises these zones based on the number of positive cases in the district. According to MOH, Green Zones are districts with no positive Covid-19 cases, while yellow means the district has 1-20 cases of Covid-19. This means that if your office is in a district that has even one positive case, you will not be allowed to resume operations even though you meet the other operation criteria.
Other Grey Areas
One of the grey areas in the recent SOP for legal sectors is whether an employee of a law firm who lives in a non-green zone i.e. Red, Orange or Yellow zone, is allowed to travel to the Green Zone to resume work? The SOP only speaks of prohibiting clients from non-green zones to travel across zones.
Legally speaking, if there is no rule prohibiting workers from travelling out of their residential area to work, then they should be able to travel to work in the Green Zone after being given approval letters.
Practically speaking however, we can see that during MCO Phase 2, several Red Zones with a large number of cases were placed under Enhanced MCO (“EMCO”) where all entry and exit points of the EMCO areas are sealed – all residents are prohibited from leaving the EMCO area and all non-residents are prohibited from entering the area throughout the 14-day duration of the EMCO. Taken altogether, employees living in an area under EMCO may not be able to travel to work, even if the law firm was located in one of the Green Zones left.
Updates on the previous post
In my previous post, I mentioned a few caveats to the application for resumption of operation by additional sectors. I feel it is necessary for the prevention of fake news allegations to keep up with the facts:
First is that companies in the selected sectors have to go through an application process before they can resume operations. This remains true as to date. The application can be done through COVID-19 Intelligent Management System 2.0 (CIMS 2.0) at http://www.application.miti.gov.my/login, although I am still unable to access the website to date.
In a FAQ released by MITI on 13 April, MITI clarified that companies with prior approval to operate during MCO Phase 1 & 2 do not have to re-apply in order to continue operations during MCO Phase 3, however they are encouraged to do so considering that the new CIMS 2.0 will auto-generate approval letters with a QR code that will facilitate the movement of workers and operations.
Second I mentioned that according to the 10 April media statement by MITI, only applications that fulfil certain “conditions” will be processed. Subsequently, on 12 April, MITI had on their Facebook page advised companies who wish to apply for resumption of operation to prepare the following details prior to submitting their applications (a) Company’s registration details (b) Company’s correspondence and business address (c) Company’s estimated annual returns for the years 2017, 2018 and 2019 (d) No. of permanent employees in the company and details of each employee.
It is unclear whether these are the “conditions” referred to in the media statement, however requirement (c) seems to suggest that a company’s earnings may be relevant to whether they will be allowed to resume operations during the MCO.
Third, I mentioned that the approval letters may take a long time to process. MITI in their 13 April FAQ stated that processing will take up to (5) days. Only time will tell if this is true.
Lastly, I mentioned that there is a possibility AES companies may risk incurring medical expenses for their employee turn Covid-19 patients. The recent SOP for legal sector confirmed that law firms at least, will have to bear the medical cost and other incidental costs in the event that their employees are found to be infected by Covid-19 during the opt-in period.
P.S. There remains no mention of whether law firms can cease operations after they have been granted permission to resume operations.
Conclusion
At the moment, it seems that applications for resumption of operation is running on trial and error basis. Meanwhile, the many caveats surrounding the resumption of operation may mean that most law firms (in Peninsular Malaysia at least) will not be able to fulfil the criteria.
Informative write up!
Common sense tells us that staying at home is the only way to stop this virus. But I guess common sense is not so common amongst employers in legal firms who still want to open their firms, risk exposing their employees to the virus, and get hit by personal injury/wrongful death claims as a result.
Indeed. It’s a dog eat dog world out there..;(
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