Employer's rights and duties
Encouraging employees to be vaccinated
Tracking employee vaccination status
The covid-19 pandemic has affected the operations of virtually every business in Hong Kong since it began one-and-a-half years ago. The government has implemented various measures aimed at countering the effects of the pandemic and allowing business activities to resume as normal. The goal is to achieve a high enough level of vaccination to protect the nation from the virus. These measures include a vaccination programme and policies permitting specific industries to operate for longer hours if their employees fulfil certain vaccination conditions. However, vaccination is not (for the most part) compulsory, and many employees are still reluctant to be vaccinated. This has led many to ask: can employers require employees to be vaccinated?
There are no laws that specifically permit or prevent an employer from requiring employees to be vaccinated. It is, therefore, necessary to look at the more general legal principles that govern employment.
Employees are obliged by law to comply with "lawful and reasonable" directions from their employers. This is the case whether or not this obligation is an express term of the employment contract. If an employee fails to comply with such a direction, they will be in breach of the terms of their employment, which may potentially give rise to grounds for their dismissal and/or disciplinary actions.
Ultimately, employers are also required to provide a safe system of work for their employees. The Ultimately, the employers are liable should their employees be harmed as a result of non-compliance with this obligation.
Lawful and reasonable direction
Employers could, therefore, argue that it is reasonable to require their employees to be vaccinated. In practical terms, the sustainability of such a requirement depends on the nature of a company's business operations. For example, following the government's relaxation of "vaccine bubble" regulations for catering businesses, dine-in service hours can be extended and the maximum number of customers per table can be increased if all staff members on the premises have been vaccinated. A restaurant operator could, therefore, maintain that it is reasonable to require employees to be vaccinated, since this would allow the restaurant to operate more profitably. On the other hand, in industries that are not affected by the employee vaccination rate (for example, industries with little face-to-face interaction with the public), it is less likely that such a requirement would be regarded as reasonable.
The "reasonableness" of a compulsory covid-19 vaccination requirement has not been tested by the courts. However, certain cases in Australia, where the courts have ruled on mandatory influenza vaccinations, could provide useful insights. In two recent cases,(1) the Fair Work Commission of Australia (FWC) held that the mandatory vaccination policies adopted by a childcare centre and a care home were lawful and reasonable, given the nature of the industry and work involved, as well as the vulnerabilities of the children and elderly clients. Both the childcare centre and the care home sought to lawfully dismiss an employee for refusing to receive a flu vaccination. The FWC agreed with the employers' position and permitted the dismissals.
Accordingly, in some industries it may be possible for employers to impose a compulsory vaccination requirement. In principle, an employee who refused to comply could be summarily dismissed (on the grounds that refusal to comply with a lawful direction amounts to serious misconduct). However, in view of the uncertainty surrounding this issue, employers should be cautious about exercising this right.
Safe system of work
The obligation to provide a safe system of work is probably not a sufficient stand-alone reason for requiring employees to be vaccinated. However, it may be a relevant factor in considering whether such a requirement was "reasonable".
Employees who refuse to be vaccinated due to medical concerns
Employees with existing medical conditions may refuse to be vaccinated due to concerns about potential adverse side-effects to their health.
In Hong Kong, employees are protected against disability discrimination under the Disability Discrimination Ordinance (DDO). Under the DDO, "disability" is broadly defined and includes medical conditions. Employers should ensure that these employees are not treated differently because they are physically unable to be vaccinated. If they receive differential treatment compared with other employees (eg, denial of promotion opportunities, reduction in benefits or dismissal), this may give rise to disability discrimination under the DDO. In situations where vaccination is considered necessary for the employee to perform their duties, the employer will have to tread carefully.
Employees who refuse to be vaccinated due to religious beliefs
Some employees may refuse to be vaccinated due to their religious beliefs. While there is currently no anti-discrimination law that protects against discrimination in Hong Kong on the grounds of a person's faith, employers are generally encouraged to accommodate different religious beliefs when implementing their vaccination policies.
Encouraging employees to be vaccinated
Given the risks and uncertainties associated with attempting to require employees to be vaccinated, many employers have adopted policies aimed at encouraging vaccine uptake among employees. This includes offering financial incentives, or rather, vaccination bonuses. These bonuses can be paid, for example, once the employee has taken the second dose of the vaccine, or by a particular cut-off date. Employers may also impose a vaccination deadline in order to earn the bonus.
These kinds of policies are lawful (and, indeed, consistent with the government's approach). However, to lessen the risk of allegations of unlawful discrimination, employees who are not able to be vaccinated due to medical reasons should still be eligible for the bonus, if they are able to provide proof of their medical condition (eg, a doctor's note confirming that they are not suitable to be vaccinated).
Tracking employee vaccination status
It is lawful for employers to collect information regarding their employees' vaccination status. However, it is not clear whether employees can be required to provide this information themselves. Arguably, it is necessary to have this information in order to comply with the obligation to provide a safe working environment, but it is not recommended that employers take such an approach.
Information relating to vaccination status constitutes personal data, so employers who collect this data must comply with the Personal Data (Privacy) Ordinance and Data Protection Principles. Employers must provide a valid reason for the collection of data (eg, for the health and safety of the workplace) and ensure that the data is used only for such a purpose. Employers must also make sure that only authorised persons will have access to the data and that the data will not be kept longer than is necessary. It is also important that the employees will be granted access to such data.
In formulating any vaccination policies for employees, employers must consider the nature of their business operations, the associated health and safety risks for their employees and the necessity of vaccination.
The legal position is, of course, only one factor for employers. There are practical issues associated with introducing a compulsory vaccination requirement. Some employees will simply not accept it, and will challenge the employer's right to impose such an obligation, or simply resign. In more extreme cases, employees may allege that imposing such an obligation gives rise to constructive dismissal, and bring claims against the employer. Employers should, therefore, seek legal advice and formulate a plan to deal with complaints and claims before introducing a compulsory vaccination requirement.
The current global health crisis is constantly evolving and the government is regularly reviewing and updating measures to better handle the situation. In a recent development of note, the government announced that covid-19 vaccinations would be compulsory for civil servants, teachers and healthcare workers. Workers in these sectors must be vaccinated or undergo bi-weekly testing at their own expense, which will put considerable financial pressure on them to be vaccinated. This development is likely to encourage employers to adopt similar measures and may eventually open the door to more companies making vaccination compulsory.
For further information on this topic please contact Patricia Yeung at Howse Williams by telephone (+852 2803 3688) or email ([email protected]). The Howse Williams website can be accessed at www.howsewilliams.com.
(1) Bou-Jamie Barber v Goodstart Early Learning  FWC 2156; Maria Corazon Glover v Ozcare  FWC 231.