Between imposing and encouraging vaccination – factors that employers should consider

Vaccination of employees is a topical and emotive issue in Hong Kong currently as government statistics show that take-up has been slow. Many employers are exploring their options as they seek to provide a safe workplace and resume full operations, especially businesses in the airline, hospitality and food and beverage sectors which have suffered greatly during the pandemic and the associated restrictions.

The Hong Kong Football Club was recently in the news for its reported announcement that employees potentially could forego promotions, bonuses and other benefits unless they are vaccinated. Other companies have intimated that cutbacks and redundancies may occur if staff do not take the jabs. Almost immediately the Equal Opportunities Commission cautioned that while providing incentives to encourage vaccination was acceptable, the removal of benefits could potentially lead to disputes.

Against this background, we discuss the factors that employers should bear in mind when considering the next steps regarding their approach to vaccination.

THE VACCINATION PROGRAMME

The vaccination programme in Hong Kong aims at safeguarding public health to eventually allow a return to normalcy in public activities. The government has offered Pfizer-BioNTech and Sinovac vaccines free of charge to all Hong Kong residents who are aged 16 and above (“Vaccination Programme”), with new guidelines for children as young as 12. Despite the ease of access to the vaccines and availability of information on the government website, there has been a general reluctance towards the Vaccination Programme. The take-up rate has been low and the percentage of the population who are fully vaccinated is far from the 70% threshold which the government is aiming for. The general reluctance and lack of clear guidelines present a dilemma for employers seeking to provide a safe working environment while preserving business interests.

REQUIRING EMPLOYEES TO BE VACCINATED

Although there is no law that prevents employers from requiring employees to get vaccinated, the way employers choose to encourage may potentially present a variety of legal and practical difficulties.

Pursuant to Section 6 of the Occupational Safety and Health Ordinance (Cap. 509) (“OSHO”), as far as reasonably practicable, employers are required to ensure the safety and health of all employees in addition to a common law duty to take reasonable care. Employees also have a corresponding statutory duty to co-operate, alongside a common law duty to obey lawful and reasonable orders of their employer.

While there is an argument that requiring employees to be vaccinated would be aligned with an employer’s duties, ultimately there is no certainty regarding whether mandating vaccination would amount to a ‘reasonable’ measure for ensuring safety and health at the workplace. This will likely depend on factors such as the efficacy and safety of the vaccines, the nature of the employee’s role, the health and safety risks present at a specific time (such as the number of cases and deaths), and the employee’s reasons for refusing vaccination, as well as whether there are available alternatives to vaccination (such as masks and regular testing). Mandatory vaccination may be a reasonable measure, for instance, in high-risk sectors such as food and beverage, and healthcare, where there is significant interaction with the public and specific government requirements regarding the minimum number of vaccinated staff apply. However, there is no one-size-fits-all approach and employers will need to make exceptions for employees who should be exempted from vaccination based on medical grounds and other conditions.

Employers should also bear in the mind the possible legal consequences under the Employees’ Compensation Ordinance (Cap. 282), which may entitle an employee to compensation for "personal injury by accident arising out of and in the course of the employment" if they suffer illness or other effects through mandatory vaccination.

There are also potential discrimination issues. The definition of “disability” under the Disability Discrimination Ordinance (Cap. 486) is broad and includes medical conditions. Similarly, there could be potential claims of direct or indirect discrimination under the Sex Discrimination Ordinance (Cap. 480) (on grounds of pregnancy or breastfeeding) unless relevant categories of staff are exempted from any company policy that all employees must be vaccinated.  

ENCOURAGING VACCINATION

Given the legal and reputational risks associated with mandatory vaccination, there has been a significant focus on encouraging or incentivising employees to get vaccinated. The forms of encouragement range from open dialogues with employees - to address perceived concerns about the safety of vaccines and emphasize the local and wider societal benefits of vaccination - to financial and other incentives.

These incentives include bonuses and one-off payments, flights, staycations, tickets to theme parks, vouchers and coupons for shops, restaurants and films, as well as lottery tickets. The chance to win a flat worth HK$10.8 million in a lottery for those who are fully vaccinated has caught the collective imagination. Employers are also offering employees additional leave if they get vaccinated and/or time off during work hours, as well as transport allowances/reimbursement to get to vaccination centres.

At this stage, it appears that financial incentives have the biggest impact and employers need to consider what is likely to be most influential for their specific workforce. In devising incentives, however, employers should focus on persuasion and encouragement rather than pressure or duress. Taking into account the EOC’s pronouncement, employers should avoid removing benefits and entitlements that employees are otherwise entitled to. Similarly, companies should be cautious about policies that provide that only vaccinated staff will be considered for promotions or pay rises. Incentives should focus on encouragement and specific targeted rewards, rather than duress and the threat of removing entitlements.

MONITORING VACCINATION

In most cases incentives (if any) are only being offered and provided upon proof of vaccination. While there is no prohibition on monitoring the vaccination status of employees, employers should keep in mind that they are required to comply with the requirements relating to collection, use, handling, storage and deletion of personal data under the Personal Data (Privacy) Ordinance (Cap. 486) (“PDPO”).

GOING FORWARD

Given the complexities and the rapidly changing situation surrounding COVID-19 employers are faced with a delicate balance between securing business interests and workplace safety on the one hand and employee concerns and associated risks on the other. Employers should carefully consider the legal implications of requiring employees to be vaccinated before implementing policies in this area. With all the sensitivity involved, clarity and consistency of communication with employees play a vital role in this process.

Jurisdictions

Registered Foreign Lawyer, Gall Solicitors

Matthew joined Gall’s Employment practice as an England and Wales qualified Registered Foreign Lawyer in January 2021 and is an experienced employment lawyer specialising in employment matters. He is known in the market for advising multi-national companies on the full range of employment issues relating to hiring and separating, employment contracts, handbooks and policies, international secondments, transactions and restructurings, labour unions, stock options and incentive schemes, social insurance and welfare schemes, employee fraud, and restrictive covenants.

Matthew also advises employees and individuals on a wide variety of employer-facing issues, including contracts and terms, conduct issues, whistleblowing and separations. He also handles contentious matters such as labour disputes, investigations, director and executive liability, and sexual harassment issues.

Ranked as a “Leading Individual” in Legal 500 Asia Pacific and recognised by Chambers Asia Pacific since 2011, Matthew has been based in Asia for over 20 years and is a regular speaker and panellist at conferences across the region. He received a BA (Hons) in French and German from Oxford University, an MA from SOAS, and a CPE and Diploma in Legal Practice from the College of Law, York, UK.

Matthew was admitted as a solicitor of England and Wales in 1998 and is a native English speaker. He speaks advanced French and German and is conversational in Mandarin.

Associate, Gall

Kritika joined the firm in July 2019 and has previous experience in civil and commercial litigation.

Kritika handles matters in the employment practice as well as the commercial litigation practice.

She was awarded the University Gold Medal for B.A.LLB (Hons.) at the National University of Juridical Sciences, Kolkata, a premier law school in India. She also holds a Bachelor of Civil Law (BCL) degree from the University of Oxford (2018).

She is admitted as a Solicitor in Hong Kong (2021) and qualified as an Advocate in India (2015).