Like many other governments, the Hong Kong Government has introduced the COVID-19 Vaccination Programme which allows Hong Kong residents to be vaccinated voluntarily free of charge. The Programme aims to allow a sufficient percentage of the city’s population to acquire resistance to the virus so as to restore normalcy to society and people’s daily lives as a whole, while still keeping the pandemic at bay.
With the Programme being rolled out, however, many Hong Kong employers are confronted with the dilemma as to whether or not they can mandate employees to be vaccinated particularly in certain industries where business can resume if they can fulfill the requirements under the “vaccine bubble”. Further, employers may ask : what are the legal concerns and the respective rights and obligations of the employer and the employee in such a situation ?
Duty of Employer to Provide a Safe Work Place
Employers are legally required take reasonable care and provide employees with a safe workplace under section 6 of the Occupational Safety and Health Ordinance (Cap. 509). Likewise, the common law recognizes a similar non-delegable duty of the employer to take reasonable care of the employees’ safety and health.
On the other hand, the employee must comply with any lawful and reasonable directions of the employer, failing which may constitute a breach of the employment contract and possibly resulting in summary dismissal under the Employment Ordinance (Cap. 57) or disciplinary action under the employment contract.
Arguably, requiring the employees to take vaccination may be consistent with the employer’s duty of care to provide a safe workplace, as this could minimize the spreading of the virus within the workplace or business premises, and hence protecting the overall health of the employees as well as customers.
Furthermore, certain types of workplaces pose significantly higher risk of virus infection and spreading, such as pubs, nursing homes and party rooms, and as such, even in the absence of a public decree or government orders compelling these categories of employees to take mandatory vaccination, the settings of such workplaces are such that mandatory vaccination may be justified. Therefore, in these circumstances, requiring the employees to take vaccination could constitute “lawful and reasonable directions” which employees may be required to comply with.
On the contrary, mandating vaccination may not be lawful and reasonable directions to employees if, for example, the job nature of the workers requires minimal physical interactions with another person(s) or the setting of the workplace is such that workers are seated or stationed far apart from one another or there is substantial work from home arrangement. If the employer makes such directions and subsequently dismiss the employee’s employment for disobeying the directions, the injured employee may seek remedies against the employer for unlawful dismissal or on other grounds. Therefore, whether mandating employees to take the vaccination are lawful and reasonable directions would depend on the facts and circumstances of each case but employers can absolutely encourage employees to take the vaccination but offering paid leave benefits on the vaccination day etc.
Vaccination Records and Covid Test Results and Data Privacy
Another legal concern for the employers would be whether they can ask for vaccination records and Covid test results of employees. Information concerning vaccination records and Covid test results are regarded as personal data and would fall under the protections of the Personal Data (Privacy) Ordinance (Cap. 486). Therefore, if employers collect such information from the employees (either with the employees’ prior consent or pursuant to the employment contract for health disclosure), the employers must comply with the six Data Protection Principles (DPP) set out in the Personal Data (Privacy) Ordinance (Cap. 486) in relation to these information.
For instance, DPP 3 (Use of Data) prohibits the use of personal data for any new purpose which is not or unrelated to the original purpose when collecting the data. Under DPP 3 therefore, if an employer collects such data, the employer would be authorized by the data subject (i.e. employee) for the purpose of ascertaining whether the data subject has had vaccination only. Other uses would be prohibited without the consent of the data subject. Reading with DPP1 (Purpose and Manner of Collection), the amount or scope of the data collected must also not be excessive but should only be what is necessarily required for satisfying the authorized purpose only.
Employee under Mandatory Lockdown
Due to the government’s public health measures, an employee may be prohibited from attending work due to neighborhood lockdown, mandatory quarantine or cancellation of flights etc. In this regard, employers should provide advance guidelines to employees when such situations occur. Arrangements may be made to allow the employee to work from home, take unpaid leave if work from home is not a viable option or possibly take annual leave, advance annual leave or no pay leave etc.
Some employees may refuse to attend work or habitually attend work late for the fear of contraction of the virus. It should be noted that unless otherwise provided in the employment contract, prolonged and unexcused absence from work even for this reason may be seen as “habitually neglectful in his duties”, possible ground for dismissal under the Employment Ordinance.
Whatever guidelines or directions an employer decides to give in this Covid situation, they should be mindful of the anti-discriminatory laws in Hong Kong. Currently, these laws protect individuals against discrimination on the basis of sex, pregnancy, marital status, disability, family status and race. Requiring only a particular group of employees, such as the old or those with compromised health or disability, may fall foul of such laws.
Furthermore, the employer should also avoid treating or appearing to treat those employees who have not been vaccinated or those who have been infected by the virus less favourably contrary to the Disability Discrimination Ordinance, as the virus may fall within one of the definitions of “disability” under the Ordinance, that is, the presence in the body of organisms capable of causing disease or illness either presently exists, previously existed but no longer exists, or may exist in the future.
Relevantly, as employers are subject to the anti-discriminatory laws in Hong Kong, in recruiting new employees, employers should also avoid making hiring decisions on the basis of a prospective employee’s vaccination record or Covid test results (the type, or the lack thereof) so as not to be seen as discriminatory toward certain class of people.
If you have any questions on the above eNews or require advice on employment law issues and labour disputes, experienced lawyers in our Employment team will be happy to assist you.