Recently, the Hong Kong Government has rolled out the new “vaccine bubble” for easing restrictions on restaurants and bars. The new rules have just taken effect at the end of April. For restaurants, on the conditions that their staff have received their first vaccination and diners use the LeaveHomeSafe mobile app, diners can eat in groups of 6 (current limit is 4), and restaurants can open until midnight (currently, restaurants have to close at 10 p.m.). If all the restaurant staff are fully vaccinated and the customers have received their first jabs, the relevant premises will be able to delineate a specified area where operation restrictions can be further relaxed, where diners can eat in groups of 8 until 2 a.m.
Naturally, in view of the new measures, restaurants and bars employers would want to have all their employees vaccinated so that business can gradually resume to normal. But can employers make vaccination mandatory for their employees?
Can employers impose mandatory vaccination?
Suffice to say at this preliminary stage when Government guidance and directions are lacking that employers who wish to make vaccination compulsory for their employees may potentially open themselves to legal liabilities. Such legal risks may differ across industries and sectors, and, in particular, against different types of employees.
Under common law and the Occupation Safety and Health Ordinance (Cap. 509), employers are required to take reasonable care of their employees’ health and safety. Moreover, under the Employment Ordinance (Cap. 57), an employee is obliged to comply with “lawful and reasonable” orders of his or her employer. Employees who fail to do so may find themselves at risk of being summarily dismissed by their employers without notice.
Whether a direction for employees to get vaccinated is reasonable will be determined on a case-by-case basis, taking into account the terms and circumstances of the particular employment relationship. It is expected that the following considerations, among others, will be relevant in such determination:
- the efficacy and safety of the COVID-19 vaccines;
- whether or not the work environment / job nature of the employees exposes the employees or others with whom the employees may come into contact to a higher risk of contracting with COVID-19;
- whether a particular employee falls within certain groups of people who are not suitable for the vaccine by reasons of their physical or medical conditions; and
- the impact on the employers’ business if an employee refuses to get vaccinated.
Take the latest measure of “vaccine bubble” as an example, employers of bars and pubs are likely to be in a position of greater strength to require their employees or new hires to be vaccinated than employers of normal restaurants, since the impact of an employee refusing to get vaccinated would mean the bars and pubs cannot even be reopened. Employers in the catering sector are in a relatively stronger position to justify a mandatory policy to have their employees vaccinated than employers in businesses which do not require employees to have any material interaction with others.
Regarding lawfulness of a mandatory order for their employees to be vaccinated, employers should be mindful as to the risks of discrimination under Hong Kong’s anti-discrimination ordinances. Under the Disability Discrimination Ordinance (Cap. 487), the definition of “disability” is broad. As such, an employer who makes hiring decisions on the basis of a prospective employee’s vaccination status may risk being seen to be discriminating against a certain class of people, i.e. those susceptible to COVID-19, likewise with employers who seek to dismiss employees who refuse to take vaccination. Besides, a blanket requirement that all staff must be vaccinated may potentially constitute indirect discrimination under the various anti-discrimination ordinances in Hong Kong, since there are certain groups of people with protected characteristics (e.g. a pre-existing medical condition or pregnancy) that are more vulnerable to the side-effects of COVID-19 vaccines and are in fact advised by the Government not to get vaccination.
Can employers encourage employees to get vaccinated?
While it is not advisable for employers to make vaccination a mandatory and blanket requirement for all their employees, employer can encourage employees to get vaccinated. Employers may consider providing incentives, such as awarding a half-day leave or reimbursing any incidental costs of vaccinations. That said, employers must be careful not to cross over into the realm of rewards. Preferential treatments between vaccinated and unvaccinated employees might trigger the anti-discrimination ordinances for the same reason stated above. Likewise, an employee who cannot be vaccinated for reasons related to their pre-existing medical condition or pregnancy may claim that they are being discriminated against because of the less favourable treatment (in the sense that they would not be entitled to a reward) on the grounds of their protected characteristics. Meanwhile, while incentivising vaccination may be acceptable, indirectly condemning an employee for not doing so is another case.
Further, unreasonable insistence on an employee being vaccinated by the employer may amount to a fundamental breach of the employment contract. If the employee chooses to resign in such a situation, such employee may make a claim for constructive dismissal and the employer could attract unexpected legal liabilities. Therefore, while it is acceptable for employers to encourage vaccination, employers should be reminded not to do anything out of the realm of “encouragement”.
Besides, if employees, after taking vaccinations incentivised by employers or otherwise at the employer’s direction, suffer severe adverse reactions or even death, employers may find themselves in trouble. Accordingly, employers should consider whether the coverage of their insurance policy is adequate to extend to such situations.
Can employers track which of their employees have been vaccinated?
Requiring employees to inform employers of their vaccination status could potentially be considered a “lawful and reasonable” direction, again, depending on the circumstances. In any event, since the collection of information concerning vaccination will be a collection of personal data, if employees do inform employers of their vaccination status, employers must ensure that the following steps, among others, are taken in order to comply with the Personal Data (Privacy) Ordinance (Cap. 486):
- inform the employees as to whether they are obliged to provide such information and the impact if they refuse to do so;
- inform employees of the legitimate and sole purpose for which their data is being collected before or upon collection, e.g. to ensure health and safety in the workplace;
- take precautions to protect the data from unauthorised access or leakage; and
- ensure that the data is not retained for a period of time longer than is necessary for the purpose for which it was collected.
Employers are therefore advised to provide their employees with a Personal Information Collection Statement before any data relating to the employees’ vaccination status is collected or stored by the employers.
Given the risks of unintended legal liabilities and consequences, employers are advised not to force their employees into getting vaccination, even for those in the catering sector or otherwise running a business in an environment particularly prone to COVID-19 infections. In case of doubt, employers should seek proper legal advice before implementing any vaccination policy. That said, employers may encourage their employees to be vaccinated so long as they do not step into the region of discrimination by treating unvaccinated employees in a less favourable way or even punishing them for their choices. All in all, vaccination programme in Hong Kong and the measure of “vaccine bubble” has just commenced. How it may interact with employment law remains to be seen.