COVID-19: Can employers in Hong Kong require their employees to be vaccinated?

Introduction

The COVID-19 pandemic is well into its second year, and has affected virtually every business in Hong Kong to at least some extent. The HKSAR Government has implemented various measures aimed at countering the pandemic and to enable the resumption of normal business activities. The ultimate goal is to achieve a level of vaccination that will protect the community 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 to many employers asking the question: “can we require our employees to be vaccinated?”.

The employer's rights and duties

There are no laws which specifically permit or prevent an employer from requiring its employees to be vaccinated. It is therefore necessary to look at the more general legal principles governing employment.

Under Hong Kong law, employees are obliged 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 dismissal and/or disciplinary action.

Employers are also required to provide a safe system of work for their employees. Occupational Safety and Health Ordinance requires employers "take all reasonably practicable steps" to ensure the safety and health at work of all employees. They are liable to their employees for any harm that is caused by a failure to comply with this obligation.

Lawful and reasonable direction

An employer could therefore argue that it is reasonable to require its employees to be vaccinated. Whether this position would be sustainable will depend on the circumstances. For example, under the relaxed regulations for the "vaccine bubble", the HKSAR Government has introduced policies that allow dine-in service hours to be extended and the maximum number of customers per table to be increased if all staff members of the catering premises have been vaccinated. A restaurant operator could therefore maintain that it is reasonable to require its employees to be vaccinated, since this will allow the restaurant to operate more profitably. On the other hand, in industries which are not affected by the employees' vaccination rate (where, for example, employees do not have a lot of 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 in Hong Kong courts. This has been considered by the Australian courts/tribunals in the context of influenza vaccination. In two recent cases[1] , the Fair Work Commission of Australia held that the mandatory vaccination policies adopted by a childcare centre and an elderly care home was lawful and reasonable, taking into account, for example, the industry and nature of work involved and the vulnerabilities of the children/elderly clients. The Commission took the view that the childcare centre and the elderly care home could validly terminate the employee in question on the ground that the employee refused to receive a flu vaccination.

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.

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/unsuitable to be vaccinated. If there is differential treatment to them as compared to the other employees (e.g. 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 their employees to be vaccinated. This includes offering financial incentives/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 deadline by which the employees have to be vaccinated in order to be paid the bonus.

These kinds of policies are lawful (and, indeed, consistent with the HKSAR Government's approach). However, to lessen the risk of allegations of unlawful discrimination, employees who are not able to be vaccinated because of medical reasons should still be eligible for the bonus, if they are able to provide proof of their medical condition (e.g. a doctor's note confirming that they are not suitable to be vaccinated).

Tracking employees' vaccination status

It is lawful for employers to collect information regarding their employees' vaccination status. However, it is not clear whether employees can be compelled to provide this information. Arguably, it is necessary to have this information in order to comply with the obligation to provide a safe system of work, but it is not recommended that employers take this 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 (e.g. for the health and safety of the workplace) and ensure that the data is only used for such purpose. Employers must also make sure that only authorised persons will have access to the data and the data will not be kept longer than is necessary. It is also important that the employees will be granted access to such data.

Implications for employers

In formulating any vaccination policies for employees, employers must consider the nature of their business/work, 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 on their position, and should formulate a plan to deal with complaints and claims before introducing a compulsory vaccination requirement.

The COVID-19 situation is evolving constantly, and the HKSAR Government makes regular adjustments to the measures it is taking to deal with it. It is significant that the Government has recently announced compulsory COVID-19 vaccination for civil servants, teachers and healthcare workers. Workers in these sectors must be vaccinated or undergo bi-weekly testing at their own expense, thus putting considerable pressure on these employees to be vaccinated. This development is likely to encourage employers to adopt similar measures, and may eventually open the door to more employers making vaccination compulsory.

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[1] Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156; Maria Corazon Glover v Ozcare [2021] FWC 231

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