What employers can and cannot do
If it is still possible for staff to work from home without impacting the business, or if unvaccinated employees can be easily redeployed within the business, it may not be necessary to make vaccinations mandatory. Andrea Randall, partner and Sakshi Butto, foreign lawyer registered at RPC To prepare this practical guide for employers.
Following remarks by CEO Carrie Lam at the end of August, where she urged private sector employers in Hong Kong to demand COVID-19 vaccinations for employees, the issue at the top of the list of each employer is: can we legally require employees to be vaccinated, and if they refuse, require these employees to be tested regularly?
Many employers have so far taken the carrot rather than the stick approach, preferring to encourage employees to get vaccinated by providing factual information about different vaccines, offering time off to attend appointments and by reimbursing travel expenses. Vaccination and / or mandatory testing may have been seen as a high-risk strategy last year, but the tide seems to be turning.
READ ALSO: Hong Kong Government Tells Employees To Get Vaccinated Or Pay For Regular Tests, Effective September 1
Can employers impose vaccinations?
In Hong Kong, employers have no statutory right to order an employee to be vaccinated or even take a COVID test.
Despite the uncertainty of the law, a number of companies and sectors have implemented a mandatory vaccination policy in line with their business needs. Employers in the F&B industry have demanded that their staff be vaccinated in light of their roles in relation to customers (especially since the government has only allowed premises with vaccinated staff to remain open after a certain period of time) . Employers in the aviation industry have demanded that personnel, especially flight crews, be vaccinated in light of international travel regulations in different countries abroad. The civil service, teachers and healthcare workers must now also be vaccinated (at least one injection) or be tested for COVID every two weeks at their expense.
Employers can now seek to rely on government appeals to justify mandatory vaccination or testing. However, if the employee refuses or resigns in protest, the government’s actions will not provide the employer with an absolute defense against any claims presented.
That said, given the current state of affairs, it would appear difficult for an employee, absent any medical or other reason, to successfully make a claim that his employer’s mandatory vaccination policy is an instruction. illegal and / or violation of his employment contract. . The Court will be aware that the government encourages vaccination and / or compulsory testing and that there may be genuine professional reasons for this approach.
READ ALSO : Hong Kong companies plan to encourage employees to get Covid vaccine
Should employers compulsory vaccines?
If there is an operational need for the company to require vaccination of employees, this question is easy to answer. However, in other circumstances, this decision is much more difficult. For example, if it is still possible for staff to work from home without impacting the business, or if unvaccinated employees can easily be redeployed within the business, it may not be necessary to make vaccinations mandatory.
It would also be inadvisable to subject employees to a compulsory policy if they have a genuine medical certificate. or any other valid reason for not being able to receive the vaccine. As such, it would make sense for employers to have an open dialogue with staff about immunizations. This will allow employers to address any concerns head-on and ensure that anyone who cannot be vaccinated for medical or other valid reasons is identified (and therefore not inadvertently discriminated against).
Ultimately, employers will make a business decision. If the policy is made mandatory and only a small portion of employees choose to terminate their employment, the cost to the business may be minimal compared to the full operation of the business and its pre-pandemic productivity. For employers who have tried many carrots in the past, they may feel justified in offering a stick now.
READ ALSO : List: companies in Hong Kong offering vaccine benefits to their employees
Can employers request the immunization status of employees?
When implementing a mandatory vaccination policy or when making a decision on whether or not to implement a policy, employers may need to know who in the workforce is vaccinated or not. intends to be vaccinated. This information may constitute “Personal Data” under Hong Kong data protection law, the Personal Data (Privacy) Ordinance.
Employers must ensure that they comply with the principles of the Ordinance and the Privacy Commissioner’s Directives for Personal Data when collecting, storing and sharing their employees’ personal data. A data protection impact assessment will usually help employers take into account key considerations to ensure data protection.
Subject to existing contracts and policies in place, employers may collect their employees’ personal data for as long as necessary and collected for a clear purpose, and that purpose is clearly communicated to employees. Employers must also explain to the employee how their personal data is stored and the circumstances under which their personal data may be disclosed to third parties (for example to comply with a government order). Employers should record this communication in writing and ideally ask the employee to confirm their consent to the collection, storage and transfer of their personal data.
READ ALSO : Many workplaces divided over Covid vaccinations
RPC photo / provided
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Authors: Andrea Randall, Sakshi Buttoo