Latest Legal Update Express [COVID Vaccine] | Mandatory Vaccination vs Incentivized Schemes | Which is Legal & Which might Not

There is more at stake here than just our lives… It is the lives around us…

—Jonathan Kent

INTRODUCTION

Throughout the world, the continuous rollout of various COVID vaccines has given humanity the glimmer of hope of returning to normality. Yet, despite the free vaccination programme rolled out by the Government of Hong Kong, many are still weary as the vaccines currently available are to many extent experimental with the potential risk of adverse drug reaction lingering in the backs of many ordinary citizen’s minds.

Such hesitation or, wait and see approach adopted by many meant that the prospect of herd immunity in the immediate future is not feasible. Worse still, vaccination hesitancy in India has turned into a global tragedy. It is against such backdrop that the Government has announced that the easing of lockdown restriction for certain class of business will be conditional upon such establishments meeting certain vaccination criteria (e.g. all employees having received their jabs).

ISSUES WITH MANDATORY VACCINATION REQUIREMENTS

Keep reminding patients that a short period of discomfort is a whole lot better than a visit to the ICU…

—Dr. William Schaffner, MD

In light of the Government’s policy regarding relaxation of restrictions, a number of employers have turned to the idea of making vaccination a mandatory condition for continued employment, failing which the employee is at times, threatened with the prospect of summary dismissal.

It should be noted however that summary dismissal under s.9(1) of the Employment Ordinance (Cap 57) (“EO”) is an exercise that should only be used in the most clear cut and exceptional of cases. Grounds for summary dismissal under the EO includes

  1. the willful disobedience of a lawful and reasonable order;
  2. misconduct;
  3. fraud or dishonesty;
  4. habitual neglect of duties; and
  5. any other ground at common law.

As mentioned, summary dismissal is a draconian solution. Where an employer is found to have improperly exercised a summary dismissal, the employer may find itself in hot waters in the Labour Tribunal. Employers should therefore turn to their employment contracts to see if there is any agreement in respect of vaccination. Where the employment contract is silent on such an issue (which is likely the case), then there is no ground to demand an employee to be vaccinated.

On the contrary, an unwarranted demand for vaccination may actually create liabilities for the employer. In this respect, it should be noted that s.10 of the EO provides that

an employee may terminate his contract of employment without notice or payment in lieu if he reasonably fears physical danger by violence or disease such as was not contemplated by his contract of employment expressly or by necessary implication

There is no doubt that there are many individuals across the globe who have held out from taking the first round of vaccines owing to concerns as to whether the vaccines have been proven to be truly safe for administering. The number of reported deaths following a person who has taken a vaccine is therefore alarming to many.

Where an employer (who is unlikely a medical expert themselves) wrongfully force an employee to take the vaccine, not only will such employer be at risk of giving rise to the Employee’s rights to exercise s.10 of the EO, but any consequential adverse drug reaction to the vaccine may give rise to a claim by the employee against the employer.

Whilst it is noted that an employer will have the obligation to a safe and healthy workplace pursuant to the Occupational Safety and Health Ordinance (Cap. 509), the employer is equally obliged not to unnecessarily expose their employees to health risk, especially when such employee might have pre-existing health condition that will make it extremely risky for them to take the vaccine (at this stage).

MERITS OF AN INCENTIVIZED SCHEME

The carrot and the stick are pervasive and persuasive motivators. But if you treat people like donkeys, they will perform like donkeys

—John Whitmore

Whilst many practitioners have propositioned that there is no clear answer as to whether an employer can mandate an employee to take the vaccine, the truth is there IS an answer, namely, mandating an employee to take a vaccine may carry risk to the employer (especially if you consider what happens if the employee dies as a result of the employer’s instructions for them to take the vaccine).

That said, the law is much clearer in that there is nothing to bar an employer to offer incentives for employees to consider vaccination as a way to better the environment. In fact, incentives offered by employers (and such incentives ought to be practical) may solve a lot of issues including the fact that the employees will themselves be ultimately making the choice free of any undue influence.

The better choice is therefore to encourage, rather than to force. Employers need to remember that they are working with living, breathing human beings after all and an organization only exists as a team. Therefore, if an employee really cannot take the vaccine due to pre-existing health conditions, show understanding and reassign them to alternative work (e.g. back office) in order to minimize front line service delivery disruption.

PRIVACY CONCERNS

Lastly, in light of the ongoing environment, it is most likely that employers will be keeping track of which employee has been vaccinated and which has not. Employers should therefore be mindful of the Personal Data (Privacy) Ordinance (Cap. 486) when collecting, handling and use of health data of their employees. Therefore, Employers should remember the following Data Protection Principles:

  1. Proper Purpose and Safe Manner of Collection;
  2. Accuracy and Limited Duration of Data Retention;
  3. Specified Use Only (no out of scope use);
  4. Ensure Data Security;
  5. Openness and Transparency; and
  6. Allow for Access and Correction.

CONCLUSION

A boss creates fear, a leader confidence. A boss fixes blame, a leader corrects mistake. A boss knows all, a leader asks questions. A boss makes work drudgery, a leader makes it interesting.

—Russell H. Ewing

Ultimately, the path to normality meant that having employees vaccinated is a conversation that will need to be addressed by all employers. When tackling this issue, always remember:

  1. Don’t threaten: it is easy to make it a mandate, but unreasonable orders without any legal basis will be opening a can of worms (with your company subject to liability). Therefore, consider incentivization.
  2. Lead not boss: As mention, organizations needs leaders. Organizations should always lead their employees to the right decision (but the decision must ultimately be the employee’s themselves).
  3. Know your staff: One of the biggest issue with most organization is that the employer doesn’t truly know their employees. Employers should know the needs of employees. Where an employee is unfit for vaccination, show understanding and be flexible to handle them. An organization is nothing without its employees (which is the most valuable asset of any entity).
Jurisdictions: 

Solicitor, ONC Lawyers

Joshua Chu is a Litigation Solicitor qualified to practice in Hong Kong. Before becoming a lawyer, Joshua worked in the healthcare industry serving as the IT department head at a private hospital as well as overseeing their procurement operations.

Since embarking upon his legal career, his past legal experience includes representing the successful party in one of Hong Kong’s first cryptocurrency litigation cases as well as appearing before the Review Body on Bid Challenges under the World Trade Organization Government Procurement Agreement concerning a health care industry related tender.

Today, Joshua’s practice is mainly focused in the field of dispute resolution and technology law.

Aside from his legal practice, Joshua is currently also a Senior Consultant with a regulatory consulting firm which had been founded by ex-SFC Regulators as well as being a management consultant for the Korean Blockchain Centre.

Partner, Ravenscroft & Schmierer, Hong Kong

Anna is a Hong Kong qualified lawyer and is responsible as a partner at Ravenscroft & Schmierer for the commercial litigation department. Aside from her legal background, Anna is also an advisor to the Ohkims Blockchain Centre in South Korea and Hong Kong qualified lawyer and a regulatory consultant specialized in IT control and compliance.  

Before starting her practice as a lawyer, Anna worked closely with the United States Patent and Trademark Office (USPTO) and US Food and Drug Administration (FDA) on intellectual property and FDA regulatory matters. 

​Since embarking on her legal career, Anna was part of the team that defended a party in Hong Kong High Court proceedings involving the jurisdiction’s first cryptocurrency cases where she leveraged her science and engineering skills extensively to help improve her client’s case’s position. This feat was repeated again shortly after when Anna again leveraged her science background in a healthcare-related tender dispute. 

​Today, Anna is proactively working on various Distributed Ledger Technology related projects where she combines her love for science and technology together with the logic behind regulatory framework.