27 January 2021
In this Room 228 Newsletter we look at the knotty issue of whether employers can require their employees to be injected with one of the certified COVID-19 vaccines…a difficult one!
COVID-19 had a massive negative impact on everyone in Hong Kong (along with everyone else in the world) for the better (worse) part of 2020 and it will continue to do so for well into 2021. With the 4th wave of the COVID-19 pandemic in Hong Kong along with all of the accompanying social distancing restrictions in place (effectively limiting the most fun people can have to hiking in Hong Kong’s country parks, visiting outlying islands and extending weekend restaurant lunches to 6:00 pm on the dot), nicking off work at lunchtime on a Friday afternoon and hopping onto a plane for a long weekend on the beach in Phuket or in the shops of Seoul all still seems a long way off…but for the great hope of the vaccines…
Top Tips for employers to combat COVID-19
Hong Kong employers are under statutory (Occupational Safety and Health Ordinance) and common law duties to ensure their employees’ health and safety at work “…so far as reasonably practicable” by the standard of the reasonable and prudent employer. In the current challenging and pressurised environment, we recommend the following measures which all Hong Kong employers should be taking – not just to meet the “reasonably practicable” standard of care for their employees, but to exceed that standard as part of a targeted and continuous effort to ensure the physical and mental health of their employees and to maintain the confidence of their workforces, whilst at the same time striking the fine balance between minimizing infection risk, maximizing employee health, safety and confidence, as well as cost to the business:
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regular office deep-cleaning / disinfection
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provision of disinfectant products / personal protective equipment
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maximize ventilation / air circulation (difficult in Hong Kong’s skyscrapers)
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implementation of flexible work-from-home / remote working systems and policies
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keep open channels of communication
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respect the individual health concerns of employees / clients (one size certainly does not fit all)
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upgrade IT systems to ensure effective / productive remote working (without compromising security)
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stay up to date with latest COVID-19 news
See September 2020 Room 228 Newsletter: You Need a Bespoke bowers.law Working From Home Plan https://bowers.law/you-need-a-bespoke-bowers-law-working-from-home-plan/
Employers and employees alike should be mindful that everyone has different risk tolerances, religious beliefs, political affiliations and personal circumstances, so flexibility is key – even as all of us in Hong Kong head into our second COVID-19 year just as anxious, stressed and frustrated as the person sitting next to us in the office!
So…can my employer force me to be injected with a vaccine?
Short answer: No.
There should be no legal justification for employers forcing their employees (directly or indirectly) to receive a COVID-19 vaccination, whether they are working from home or whether they are coming to the office (every working day, or in a rotation system).
In circumstances where the effectiveness and possible unknown side-effects of vaccines are highly dependent on a person’s own individual situation and pre-existing health condition, “to vaccinate or not to vaccinate” really is a personal health decision for individuals to make for themselves.
Can my employer force me to disclose my decision / COVID-19 vaccination certificate?
Short answer: Maybe (depending on your job).
Seeing as a person’s medical records (including a COVID-19 vaccination certificate) should constitute personal data under Hong Kong’s Personal Data (Privacy) Ordinance, employers should not be able to insist that their employees disclose COVID-19 medical certificates.
This general position should be different for employees in a higher-risk healthcare context (e.g. healthcare professionals or employees working in medical clinics / care homes etc where the risk of virus exposure and transmission is exponentially higher than say in an office environment) in which case employers may well be justified in requiring the production of vaccination certificates by their employees.
Whatever the position of any individual employee in any particular job, any collection of personal data by an employer should not be excessive and reasonable steps should be taken to ensure the accuracy of the data which should be kept secure and confidential. Employers should be obliged only to keep their employees’ personal medical records for a period no longer than necessary to satisfy themselves that the employee received a certified vaccination. It may well be then that a vaccination certificate is produced by an employee, but not actually kept by the employer.
In all these situations, proportionality will be key.
Obviously, it’s a very delicate legal, moral and social issue, and we’ll just have to see how the Hong Kong Government (and Governments around the world) deal with this knotty problem – and it’s bound to be different in different countries / regions, based upon differing legal, moral, social and religious codes.
Legal issues aside, employers should be mindful of the moral and social implications of their employees’ individual decisions “to vaccinate or not to vaccinate” and try to accommodate differences in personal situations, opinions, views and beliefs by ensuring open dialogue and raising awareness of latest updates on COVID-19 and its vaccines.
Employers should implement practical solutions to ensure that they exceed their statutory, common law (and moral) obligations to keep their employees healthy and safe – a happy healthy workforce is a productive one. Your business is your employees!
Wrongful termination claims by employees
If employers get too heavy-handed with staff over these highly personal, sensitive and emotional vaccination issues, they will inevitably face constructive dismissal / wrongful termination of employment claims, and may well have limited defences to those claims.
Vaccination programme in Hong Kong
In order to curb the spread of and finally to put an end to the COVID-19 pandemic in Hong Kong, it is reported that the Government is in the process of procuring 22.5 million vaccine doses from 3 developers: BioNTech-Pfizer, AstraZeneca-Oxford, and CoronaVac-Sinovac (7.5 million doses each) in preparation for a free mass COVID-19 vaccination programme for its residents, bearing in mind that 2 doses of the same vaccine have to be administered separately (likely a few weeks apart) to provide sufficient protection. Authorisation of the use of vaccines is given by the Secretary of Food and Health under the newly enacted Prevention and Control of Disease (Use of Vaccines) Regulation.
Seeing as the vaccines will be arriving in batches (with the first batches still not expected to arrive next month – which has raised a few eyebrows), the Government has prioritised the following high-risk target groups to receive the vaccination first (in no particular order):
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frontline healthcare workers
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chronically ill hospital patients
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elderly
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residential care home residents/workers
With an expected roll-out after next month’s Lunar New Year holiday, COVID-19 vaccinations should be administrated in community centres in each of the 18 districts, private hospitals and clinics. However, with worldwide headlines referring to possible side-effects and efficacy rates of the vaccines (especially with mutant variants starting to appear), the biggest challenge the Government’s COVID-19 vaccination programme may face is public confidence, although with the impressive 100% mask-wearing and adherence to social distancing regulations in Hong Kong over the last year, the rate of COVID-19 vaccine take-up in Hong Kong is likely to be high, meaning that the issue of disclosure of vaccine certificates in Hong Kong is unlikely to be a medical one, but more one relating to a reluctance by individuals to disclose their personal data, meaning that although employees may happily reveal to their employers that they’ve had the vaccine, they may object in principle to disclosing the certificate. Any such objection however may prove pretty pointless at the end of the day, if we’re all forced to produce COVID-19 vaccine certificates to board a plane, go to the gym, enter a cinema etc.
We’ll all just have to follow the best path for each of us, our families and our co-workers as we go along…mindfully!
