As COVID-19 vaccines are approved and made available, one important question employers are asking is “Should and could the vaccine be made mandatory for employees?”
While organisations have a clear incentive to want staff to be vaccinated, it depends on balancing the employer’s duty of care to all employees with significant caveats.
Under Hong Kong law, organisations have a duty of care to their staff and are required to provide a safe place of work. Employees are required to obey lawful and reasonable orders given by their employers. Put another way, if an organisation requires staff to be vaccinated for the purpose of making the workplace safe, must they obey, and what are the consequences if they don’t?
The starting consideration for any employer deciding whether to require staff to be vaccinated must be whether a vaccinated workforce will actually make the workplace safe. This is primarily a matter of fact and legal analysis, but the organisation’s culture and employee relations also play a part.
As of the time of writing (early March 2021), we know that:
the Hong Kong government has obtained three types of vaccines;
these vaccines have different efficacy rates, but none are 100%; and
all adult Hong Kong residents are eligible to be vaccinated for free on a voluntary basis.
We do not yet know:
whether people who have been immunised are able to transmit the virus; or
how long the protection from immunisation lasts.
Turning to the legal issues, in addition to the common law (such as case precedents and certain terms that are implied in all employment relationships), the main legislation for organisations to consider is:
Employment Ordinance (EO)
Occupational Safety and Health Ordinance (OSHO)
Disability Discrimination Ordinance (DDO)
Personal Data (Privacy) Ordinance (PDPO)
Under the EO, an employee is entitled to terminate the employment contract without notice or payment in lieu if he/she reasonably fears physical danger by violence or disease. This is complemented by the employer’s obligation under the OSHO to provide a safe place of work. There is no “one size fits all” method that achieves this. Each workplace has its particular types and levels of risk. An elderly care home will be different from an office, which will be different from a supermarket or retail shop.
Evaluating the risk
Employers should perform a risk assessment to identify potential health and safety risks and the potential consequences if the risk materialises. It should then determine what reasonably practicable steps can be taken to mitigate those risks. Until now, most organisations have adopted such measures as encouraging staff to wash hands frequently and wear masks, making hand sanitiser available, increasing cleaning and disinfection, and boosting social distancing such as arranging for staff to work remotely or in shifts. Employers may believe that requiring all staff to be vaccinated is an easy way to create a safe place of work, but it cannot achieve this by itself.
Organisations must bear in mind that because different vaccines have various efficacy rates, they offer different protections. For example, one vaccine has an efficacy rate that is reported to be 62%, while another is reported to be 95%. Members of the medical community in Hong Kong have indicated that the first vaccine (with a lower efficacy rate) may not offer complete immunity, but it will protect against severe COVID-19. In other words, it may still be possible to contract COVID-19, but the case will be much milder than if the patient were unvaccinated. The second vaccine, with its higher efficacy rate, is more likely to prevent even mild cases. Because we do not have a vaccine that is 100% effective, employers need to keep in mind that even if 100% of staff are vaccinated, some employees could still contract COVID-19 and pass it to others.
Employers should ask themselves, “In the current situation, based on the facts available, will requiring all staff to be vaccinated make our particular workplace safe?” Based on the information currently available, the answer will often be “no”. Apart from the efficacy rates of vaccines, they should consider their particular workplace.
For instance, employees who work directly with the public (and not merely with other employees), such as retail staff, face a higher risk of exposure from the public than from other staff. While it would make sense for these staff to get vaccinated, the employer needs to ensure that staff are also protected from the public in order to provide a safe place of work. Another tricky category is teachers who are in classrooms with students who are too young to get vaccinated. (Currently no vaccines have been approved for children under the age of 16.) Even if all staff are vaccinated, those who work in schools are still at risk from students who may transmit COVID-19. These examples highlight that an organisation’s analysis must take into account all of the relevant facts.
Understanding the duty of care
A second, related question is “Will I breach my duty of care if I allow unvaccinated employees to attend the workplace?” All employers have a duty of care to their staff. If the staff are in a workplace where they are more likely to be exposed to COVID-19 (such as front-line medical workers), then requiring a vaccine may be reasonable. On the other hand, employers of office workers (where the risk of exposure is comparatively lower) are less likely to be found in breach of their duty of care if they don’t mandate vaccines. Some organisations have an additional duty of care, such as operators of elderly care homes and those whose staff work with vulnerable populations. These duties must be balanced, and in such cases it may be more reasonable to require staff to be vaccinated to ensure that those populations are protected.
Employers must bear in mind it is likely that some staff cannot be vaccinated for medical reasons. Pregnant women, those with certain health conditions or who have particularly weak immune systems may need to delay vaccination or ensure that they receive one type of vaccine rather than another. If organisations require all staff to prove that they have been vaccinated, these staff will not be able to comply. This raises two issues.
Firstly, the employer might not be aware of the employee’s medical condition, which forces the employee to reveal personal health data to explain why he/she cannot comply with the order to be vaccinated. It is debatable whether this is fair collection of personal data under the PDPO principles. The collection of data must not be excessive, and must be used only for the purpose for which it was collected. The organisation will also have to comply with the PDPO in relation to the retention of this data, ensuring that it is secure and retained only as long as required.
Secondly, if the employer plans to dismiss or treat non-vaccinated staff less favourably than those who are vaccinated, this could amount to discrimination, either directly or indirectly. If an organisation imposes a condition on all staff, but staff who cannot comply fall into a protected category (such as being pregnant or having a medical condition), then this is indirect discrimination. If an employer takes adverse action against a non-vaccinated employee, this could be direct discrimination on the basis of an imputed disease.
A key consideration for employers who want to mandate vaccines is what they will do if staff refuse to comply, whether for health or other reasons. The validity of dismissal or other disciplinary action depends on the organisation’s order being lawful and reasonable. Whether mandating a vaccine is reasonable will depend on all of the factors as outlined above. Currently, with limited exceptions, it is unlikely that this will be considered reasonable. The risk to an employer who cannot justify their disciplinary action could range from a claim for dismissal without a valid reason to a discrimination claim or a complaint under the PDPO.
There is a consensus that it is important for a significant portion of the population to be vaccinated before we achieve herd immunity, which in turn helps protect those who cannot be vaccinated. Rather than using a stick, organisations should consider a carrot to encourage staff to be vaccinated by giving them some time off to do so or incentivising them in some other way.
Whether all staff are vaccinated or not, until transmissions cease (or slow to a level accepted by the health authorities) employers must continue with existing safety measures such as wearing masks, making hand sanitisers available, increasing cleaning and disinfection of the workplace, and enhancing social distancing by arranging for staff to work remotely or in shifts. There are no shortcuts to providing a safe place of work.
Note: The information contained herein is intended
to be a general guide only and is not intended to
provide legal advice. This journal, its publisher and
the HKIHRM do not assume any legal responsibility
in respect of any comments provided in this article,
which do not constitute legal advice and should
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professional legal advice should be sought as
necessary in respect of legal matters and issues
raised in this article.