Confirmed coronavirus infections are expected to exceed previous highs amidst Hong Kong’s fifth wave of the COVID-19 pandemic. The Government has responded by implementing the city’s toughest social-distancing restrictions to date with the roll-out of the ‘Vaccine Pass’, which takes effect from 24 February 2022 in an attempt to protect citizens and also drive up vaccination rates. As part of this initiative, the Government has also proposed significant amendments to the Employment Ordinance (Cap. 57) (“EO”) including a potential ‘right’ for employers to terminate staff who do not fulfil Vaccine Pass requirements.
The Main Features of the Vaccine Pass
Under the Vaccine Pass, only those that are vaccinated or exempted will be permitted to enter government venues, restaurants, and 23 other types of premises including shopping malls, supermarkets, wet markets and fitness centres.
Although the Vaccine Pass does not currently extend to public transportation, it is expected that the majority of employees will require the Vaccine Pass to enter public premises to access their workplace. Employers with offices in commercial buildings linked to shopping malls, for example, may need to consider whether to make accommodations (such as Work from Home policies) for those employees that do not meet the Vaccine Pass requirements, or whether to take a stricter approach.
This brings into focus the question of whether employers will now be allowed to terminate unvaccinated employees who are unable to attend work and carry out their job duties at venues covered under the Vaccine Pass.
Planned Changes to Employment Laws
In an effort to clarify the situation and minimise potential labour disputes arising from the implementation of the latest anti-epidemic measures, the Government has proposed amending the EO to provide that: (i) employees terminated by reason of being unvaccinated or unable to adhere to Vaccine Pass rules, and subsequently unable to attend work will not be treated as having been unreasonably terminated; (ii) employees terminated on the basis of absence from work due to compulsory testing or mandatory quarantine requirements will be deemed unreasonably terminated and (iii) employees with a quarantine order or medical note will be deemed to hold an appropriate medical certificate entitling the employee to (paid) sickness leave.
Implications for Employers in Practice
Some major international companies have successfully rolled out strict ‘no jab-no job’ vaccine mandates, in some cases reportedly reaching 99% employee compliance. However, this has been done against an unclear legal background, with no certainty as to whether an employer’s requirement for an employee to get vaccinated would be considered a reasonable order and therefore constitute a lawful basis for termination if employees refuse to do so.
The proposed amendments to the EO seem destined to change this and to provide a clear basis for termination. This may provide recourse to employers struggling with how to approach employee vaccinations. The Government is expected to provide further guidance and details regarding the proposed amendments.
In the meantime, unless and until these amendments become effective, employers are advised to monitor the situation and only terminate staff if absolutely necessary taking into account all the circumstances relating to their business, the effect of the Vaccine Pass and their duty to take measures as far a reasonably practicable to ensure the safety and health of all employees.
Anti-Discrimination
The implementation of the Vaccine Pass also has potential implications with regard to workplace discrimination. Recent events have increased the apparent divide between members of the vaccinated and unvaccinated population.
The Federation of Hong Kong and Kowloon Labour Unions has urged the Government to refrain from implementing the Vaccine Pass, whilst The Hong Kong Equal Opportunities Commission (“EOC”) has appealed to the public to avoid discrimination against entire industries or communities “based on the background of the infected person”, with flight attendants, hamster owners and members of particular ethnic communities becoming recent “targets of blame”.
The EOC has previously issued warnings that termination by employers based on vaccination status may amount to unlawful discrimination. At this stage there is no information as to whether the proposed legal changes will be referenced to anti-discrimination legislation.
Accordingly, employers should also keep in mind potential discrimination issues in connection with how they treat unvaccinated employees and also potential hires who have not been vaccinated.
For further information on the implementation of COVID-19 policies and termination of employees, please do not hesitate to contact our employment team.
Additional details of statutory requirements and entitlements in connection with termination of employment may be found in our guide When and How to Terminate an Employee in Hong Kong.
For further information, please contact:
Matthew Durham, Registered Foreign Lawyer, Gall
matthewdurham@gallhk.com
