15 September 2021
The latest COVID-19 outbreak in Vietnam, which began in late April 2021, has brought the economy and daily life to a standstill. As factories and businesses are forced to shut down, breakdowns in the global supply chain have begun to emerge in respect of products sourced from Vietnam, such as clothing and coffee. Due to the highly contagious nature of the Delta strain of the virus, previously effective measures such as lockdowns and isolation of infected patients have been insufficient; instead, the mass vaccination of the population is necessary. Vietnam recognizes this, and has begun a vaccination campaign with the goal of vaccinating 70% of the population by the end of 2021.
Businesses also recognize the need to vaccinate their workers in order to keep their factories and workplaces open. In this article, we explore whether employers in Vietnam may require their employees to be vaccinated, as well as associated disclosure and privacy issues under Vietnamese law.
Can an employer require its employees to be vaccinated?
Generally speaking, an employer cannot demand its employees to be vaccinated. There is no express power of either the government or an employer to mandate that an individual be vaccinated. However, due to Vietnam’s critical situation of skyrocketing infections and months of lockdown, the government is granting authorities more sweeping powers. On August 6, 2021, the government issued Resolution No. 86/NQ-CP on Urgent Solutions for COVID-19 Prevention and Control to Implement Resolution No. 30/2021/QH15 of the Government (Resolution 86). Resolution 86 provides local authorities with broad powers to prevent and control the COVID-19 pandemic. Under this resolution, the local authorities could mandate that employees working in an industrial park be vaccinated, and in this case, an employer located in the relevant area could demand its workers to be vaccinated.
If an employee refuses to be vaccinated in this situation, he or she may have his or her employment temporarily suspended, or the employer may be entitled to apply other measures, depending upon the latest law and guidance from local authorities in preventing and controlling the COVID-19 pandemic. As these regulations are rapidly changing and evolving, we recommend that employers check the most up-to-date regulations to determine their available courses of action in these circumstances.
While employers may be entitled to take certain cost-cutting measures in respect of an employee who refuses to be vaccinated, this would not form a basis to dismiss or unilaterally terminate the employee. An employee terminated on this basis could bring a wrongful termination lawsuit, and if the court found in the employee’s favor, the court would order the employer to (i) reinstate the employee, (ii) pay the employee the salary and benefits for the period during which he/she could not work, including all statutory insurance contributions over this period, and, (iii) pay the employee at least an additional two months’ salary as compensation for emotional distress.
Can an employer require an employee to disclose whether he/she is vaccinated?
Employers may request employees to voluntarily disclose whether they have been vaccinated, but there is no default duty on the part of the employee to disclose this information. An employee may be required to disclose this information if there is a government order mandating employee vaccinations in an industrial park or workplace, or if this duty of disclosure is set out in the employees’ labor contract, the employer’s occupational health and safety policy, the employer’s internal labor regulations (the internal working rules of the company that are registered with the local labor authority), or a collective bargaining agreement between the employees and the employer.
Employers are advised to review these documents, particularly their occupational safety and hygiene policies, to ensure they address the ongoing COVID-19 pandemic. Employers may wish to include a duty for employees to provide information about their health status if it could affect the occupational health and safety of other individuals at the workplace. They may also wish to address COVID-19 testing within these documents, and specify that employees must consent to testing at the employer’s request. Under the Law on Occupational Safety & Hygiene, employers, together with the corporate-level trade union, must formulate occupational safety and hygiene policies, and employees are bound to follow them. Thus, if COVID-19 prevention measures such as testing and the duty to disclose COVID-19-related symptoms are included within these policies, employers can much more easily implement such measures in their workplaces.
Can an employer offer incentives or benefits to encourage employees to be vaccinated?
Employers may offer employees benefits to incentivize them to get vaccinated; however, there is a potential risk that this could be considered an instance of labor discrimination under the Labor Code. While vaccination status is not listed as a protected ground under Article 3.8 of the Labor Code, disability is a protected ground. Thus, if an employee was unable to get vaccinated due to an underlying health condition (which could be characterized as a disability), providing benefits to only vaccinated employees could be considered discriminatory. Nonetheless, considering Vietnam’s current critical situation, it is very unlikely that the labor authority or the courts would support an employee claim which could slow down vaccinations. Moreover, employers could provide a special exception to employees who could establish that their failure to be vaccinated was due to an underlying health condition to avoid any possibility of a discrimination claim.
Are there any regulatory requirements applicable to an employer’s collection, processing, or storage of information relating to employee vaccinations?
An individual’s vaccination status would be considered personal information, and therefore subject to protection under Vietnam’s privacy laws. These laws are currently scattered throughout different pieces of legislation, but a common key principle under them is that the collection, storage, use, processing, publication, disclosure, and transfer of information and materials related to the private life or personal information of an individual must be consented to by that person, unless consent for such transaction is exempted by law; and the use of such information must be consistent with the scope of consent given. Thus, an employer may only share information regarding its employees’ vaccination status with their informed consent.
While the law does not specify the form for an employee’s consent in circumstances such as these, we recommend obtaining clear, affirmative opt-in consent. This consent could be in a written document with a wet signature, or via email or an online website with a click-through mechanism. The consent form should include the following information and contents: (i) the purposes for the collection of the information; (ii) the scope of information use; (iii) the duration and form of information storage; (iv) to whom the personal information will be transferred; (v) persons or organizations which may access the information; and, (vi) the individual’s right to correct or review his/her information. Employers are bound to comply with the specifications stated in the consent forms.
Vietnam’s law on personal data protection will likely change in the near future, and under the prospective law, it will be incredibly onerous for employers to deal with information relating to their employees’ vaccination statuses. The Ministry of Public Security (MPS) issued a Draft Decree on Personal Data Protection (the “Draft Decree”) in February 2021, which is anticipated to go into effect sometime in 2022. The Draft Decree distinguishes between “basic data”; and “sensitive data”, and an individual’s medical information is classified as “sensitive data”. Organizations wishing to handle sensitive data must register under the Personal Data Protection Commission (PDPC) under the MPS prior to engaging in this activity. This registration process involves the submission of an impact assessment report addressing the potential harm to data subjects due to the proposed processing and measures to manage, minimize, or eliminate such harm.
In addition to these registration requirements, the Draft Decree has broadened the data processor’s obligations with respect to obtaining informed consent and requires data processors to adopt administrative and technological measures to protect personal data, and to report to the PDPC on the same. (For further details, please see “A Closer Look at Vietnam’s Hotly Debated Draft Decree on Personal Data Protection.”) Thus, after the Draft Decree is finalized and takes effect, it will be extremely onerous for employers to collect and process data on their employees’ vaccination statuses.
Recommended actions going forward
We recommend for employers to carefully monitor government orders to determine if such orders entitle them to mandate employee vaccinations. Employers could also consider reviewing their labor contract templates, internal labor regulations, and occupational safety and hygiene policies, to determine if they need to be updated to address the current COVID-19 pandemic. These documents should include provisions obligating employees to disclose their vaccination status and to consent to COVID-19 testing. Employers should also open a dialogue with the corporate-level trade union (if one exists) as the trade union’s cooperation will be required in order to amend the internal labor regulations and occupational safety and hygiene policies.
Employers should also draft consent forms for the handling of information relating to their employees’ vaccination statuses which comply with the law, and msonitor the status of the Draft Decree to determine if its policies for the handling of this information need to be updated.
