7 May 2021
We have seen now different countries rolling out various COVID-19 vaccinations. Employers and employees are keen to see some sort of semblance of how things were or at least a lifting of restrictions, but with such novel vaccines there are many questions that are still unanswered. By now, many Hong Kong employers will have established that there is no general right of employers to require employees be vaccinated. The situation may shift in light of specific health and safety risks or business imperatives, so it is worthwhile briefly reviewing the legal principles.
Can employers impose a general requirement that employees be vaccinated?
To enforce a requirement that employees be vaccinated, an employer would need to demonstrate that the requirement is ‘lawful and reasonable’. While the lawfulness and reasonableness of mandatory vaccinations has not come before Hong Kong courts or tribunals, a handful of recent decisions from the Australian Fair Work Commission shed some light on how the issue may be approached.
The most recent case1 involved an employee working at childcare centre who was fired after refusing to get a flu vaccination. The Commission was satisfied that the employee’s failure to comply with the lawful and reasonable direction to have a flu vaccination was a valid reason for dismissal. Whether the direction was ‘reasonable’ was said to be a question of fact and balance. Here, the activities of the employer in providing care to young children and infants (who themselves were largely unable to be vaccinated) and the fact that childcare is a highly regulated industry where safety is of “paramount importance” were considered in addition to an employer’s usual duties to provide a safe workplace and were found to be “pivotal” in whether the requirement was reasonable. The Commission also looked at the viability and effectiveness of alternative safety measures and the exemptions for employees with a medical condition which would make vaccination unsafe. Despite the employee’s claim she had a “sensitive immune system” and a previous adverse reaction to a flu vaccination, the Commission noted that she had only provided “vague [medical] certificates which attest nothing substantive” and agreed with the employer that the exemption did not apply.
Another case2 involved an employee who was dismissed from her job at an elderly care provider, also for refusing to receive the flu vaccine due to an adverse reaction she had to the flu vaccine when she was seven. While this decision also focussed on a jurisdictional issue, the Commission also recognised that it may be lawful and reasonable for the employer to determine that vaccination was an inherent requirement of the role, and a failure to meet this requirement could justify termination of employment regardless of any medical or religious grounds raised by the employee. To get to this position, the specific facts would need to be carefully considered, such as the vulnerabilities of the elderly clients, the potential effects of those clients getting the flu from an unvaccinated employee, and the validity or reasonableness (based on medical evidence) of the basis the employee advanced for refusing vaccination.
Although these cases deal with flu vaccinations, they provide some guidance on when a requirement to be vaccinated may be ‘lawful and reasonable’. The specific nature of the employer’s activities, the health and safety risks present to employee and others and any other regulatory obligations of the employer will need to be balanced with an employee’s reasons for refusing vaccination, and the available alternatives. Most employers will struggle to demonstrate that mandatory COVID-19 vaccinations are necessary to discharge their health and safety duties under Hong Kong law, particularly as such duties are not absolute but require reasonably practicable steps to be taken, and workplaces have operated throughout 2020 and into 2021 using less intrusive measures to manage safety (e.g. mandatory health declarations, temperature checks, wearing masks, testing) and alternative work arrangements (e.g. work from home).
Can vaccines ever be mandated?
While there is no general right of employers to require employees be vaccinated, the cases suggest that the balance may shift where for instance, there are specific occupational risks or particular business imperatives that support the requirement for staff to be vaccinated.
In Hong Kong, we are already starting to see such scenarios emerge. For instance, the Government has announced its policy to permit longer operating hours for restaurants or bars where all staff have been vaccinated. This may justify employers requiring all employees be vaccinated, but again it will be important to consider the specific facts, such as the usual operating hours, the impact of business feasibility with extended operating hours, any reasons employees raise as to why they cannot be vaccinated, and alternatives to vaccination.
Once business travel resumes, mandatory vaccinations for travelling employees may be justified in certain circumstances, such as where the travel presents an increased risk of contracting COVID-19, or vaccination is a condition of entry or airline travel. Before making the decision to require mandatory vaccination, the specific circumstances must be carefully considered.
Can an employer track vaccination rates of employees?
While tracking employee vaccination rates may be permitted, it may not be desirable as it increases risks relating to data privacy compliance, discrimination and health and safety management.
Information on whether an employee has been vaccinated will be personal data and must be handled in accordance with the Personal Data (Privacy) Ordinance and the Data Protection Principles (DPPs). DPP1 provides that personal data can only be collected for a lawful purpose directly related to a function or activity of the data user, and that the data collected should be necessary and adequate but not excessive for such purpose. The threshold questions on vaccination data collection will then be: why is such personal data being collected and what would it be used for?
At first glance, it seems that information about vaccination rates of employees would be useful for employers to assess factors such as the risk of transmission in the workplace and the safety of employees and visitors. However, it is not a binary equation that more vaccinated employees means a safer workplace. When you start to delve deeper, more difficult questions arise such as what information should be requested (type of vaccine, date received etc.) and how or by whom should the data be assessed (i.e. would advice from a doctor or epidemiologist be needed)?
Indeed, having vaccination data may in some ways make management of safety risks more difficult for employers, as they would need to consider an array of factors such as: whether health and safety measures in the workplace should be adapted dependent on vaccination rates at any one time; whether different vaccines should be treated differently; whether different safety measures are appropriate for different groups; what steps are necessary to ensure that vaccination data is not used in a discriminatory manner (for instance, an unvaccinated employee with a medical condition missing out on work opportunities). Employers may also feel compelled to consider whether similar data should be collected in respect of other vaccinations as a part of enhancing the safety of employees and visitors to the workplace.
Given these issues, absent a targeted reason for obtaining information on whether certain employees are vaccinated, it may not make sense to track vaccination rates.
Key takeaways
The situation in relation to vaccinations is evolving. Employers should ensure they are on top of the most recent government health advice and consider how this impacts their business and their employees, including as the public health risks shift.
Before measures are implemented, careful consideration of the key objectives of such measures and their impact is essential. Clear communication and consultation with employees on any proposed measures will assist employers to understand and address any concerns of employees which will make the overall management more effective.
In case you missed them, check out our previous Safety Snapshots on Working from home, Notification obligations following a workplace accident, Directors and officers liability and Occupier’s liability.
For further information, please contact:
Giselle Yuen, Herbert Smith Freehills
1 Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156
2 Maria Corazon Glover v Ozcare [2021] FWC 231
