Covid-19 – can employers in Hong Kong require their employees to be tested and vaccinated?
21 January 2021
With a vaccination against coronavirus being rolled out in Hong Kong shortly, many employers in will understandably be eager to have their employees vaccinated in the hope of their workplace returning to some form of normality. This article explores some of the legal issues.
Testing and Vaccination
There is no statutory right under Hong Kong law for employers to require employees to undertake any medical tests, including COVID-19 tests. Therefore, although employers may ask employees to undertake a COVID-19 test, they cannot compel employees to do so if they refuse.
If the employment contract contains an express provision allowing the employer to direct an employee to attend medical examinations, the employer may potentially rely on this contractual clause to require the employee to undergo a COVID-19 test.
In the absence of any contractual right to compel an employee to undergo a test, an alternative basis is to treat a requirement to undergo the test as a 'lawful and reasonable' direction by the employer. Under common law, an employee is under a duty to obey lawful and reasonable directions by the employer. Given that employers are legally required to take reasonable care of their employees' health and safety under common law and the Occupation Safety and Health Ordinance (OSHO), requiring employees to undertake COVID-19 tests could potentially be considered a 'lawful and reasonable' direction if, say, for example, employees are required to attend the workplace. If an employee refuses to undergo testing, an employer may consider taking disciplinary action for the refusal to obey a lawful and reasonable direction. However, whether disciplinary action can be justified is highly fact-sensitive and would depend on whether testing is deemed necessary in the circumstances.
It should be noted that if the Centre for Health Protection identifies an employee as part of a high-risk group or as a close contact of a confirmed case, the employee will be required by the government to undergo mandatory testing.
Vaccination and vaccination status in the workplace
As mentioned above, employers are legally required to take reasonable care of their employees’ health and safety under common law and the OSHO. However, it is not clear whether requiring employees to be vaccinated would be considered a ‘reasonable’ step for employers to take to ensure employees’ health and safety. Whether implementing such a requirement would be considered reasonable will be highly fact-dependent and will depend on factors such as the risk associated with any particular workplace.
Requiring employees to inform employers of their vaccination status could potentially be considered a 'lawful and reasonable' direction, depending on the circumstances. If employees do inform employers of their vaccination status, the employer should ensure that they comply with the Personal Data (Privacy) Ordinance as such information would constitute personal data.
Incentives for vaccination
The Hong Kong government has announced that it will be launching in phases its territory-wide COVID-19 Vaccination Programme shortly to offer all Hong Kong residents COVID-19 vaccinations on a voluntary basis free of charge.
Employers may incentivise employees to participate in the Vaccination Programme, but they cannot compel employees to do so if they refuse.
Dealing with refusal or inability to get vaccinated
As mentioned above, employers are legally required to take reasonable care of their employees' health and safety. If requiring employees to be vaccinated would be considered a ‘reasonable’ step for employers to take to ensure employees’ health and safety, but an employee refuses or objects to be vaccinated for medical reasons, proceeding to dismiss an employee on this ground may open the employer up to liability for indirect discrimination under the Disability Discrimination Ordinance.
If it is indeed reasonable for employers to require vaccination, a more reasonable response to an employee’s refusal or objection to being vaccinated for religious, medical or other reasons would be to change the employee’s place of work and/or duties accordingly. Such change should be undertaken with the employee’s express consent as it would constitute a change to the employment terms.
Hong Kong anti-discrimination law protects the characteristics of sex, pregnancy, marital status, disability, family status and race. In requiring employees to undergo vaccination, employers should take care not to discriminate against employees on the basis of these grounds.
Vaccination and data privacy
If employees do inform employers of their vaccination status, the employer should ensure that they comply with the Personal Data (Privacy) Ordinance as such information would constitute personal data. In particular, the employer must inform employees that the purpose for collecting the data is to ensure health and safety in the workplace, and use the data collected solely for this purpose. The employer must also inform employees of the classes of person to whom the data may be transferred, and their right to request access to this data. Moreover, the employer must take precautions to protect the data from leakage or unauthorised access, and only retain the data for a period that is reasonable and necessary with regard to the purpose.
Vaccination and posted workers
In Hong Kong, there is no equivalent concept of a ‘posted worker’ similar to that in the EU. However, in relation to employees being seconded on a temporary basis to another country, there are no specific provisions in this regard in force in Hong Kong. It will be for the parties involved to determine the arrangements for any testing or vaccination.
How to keep workers safe in the office
Setting up the workplace
As previously mentioned, an employer has a duty to take reasonable care of employees’ safety and health and to provide and maintain a safe place of work for the employees in all circumstances.
In addition, the Centre for Health Protection has issued a Guideline to help prevent COVID-19 in the workplace. Although this Guideline does not have the force of law, employers are encouraged to follow it to the extent possible. Following the Guideline may help to demonstrate that employers have discharged their duty of care under statute and under common law.
It is therefore prudent for employers to implement various measures such as temperature checks, physical distancing, ensure the use of protective equipment such as face masks, quarantine measures in relation to employees whose family members or close contacts are infected, etc.
There is no definition of ‘vulnerable’ employees in Hong Kong, and therefore there are no separate rules for so-called ‘vulnerable’ groups.
Back to the office
Generally speaking, an employee must comply with his or her employer’s reasonable instructions. Therefore, unless there is a valid basis for refusing to attend the workplace or s/he thinks the workplace is dangerous or hazardous to his or her health, an employer could mandate its employees to return to workplace, and a refusal to comply with the instruction to return to workplace may amount to a breach of contract.
However, employees may lawfully refuse to return to the workplace if they reasonably fear for their health and safety. This may be the case where it has been confirmed that another employee contracted the virus, but the workplace has not since been professionally cleaned or disinfected.
There is no legislation nor guidance the employer is required to follow in terms of practical measures. We recommend that the employer should direct the concerned employee not to attend the workplace until they obtain medical clearance.
Bearing in mind the employer’s obligation to provide a safe workplace, we recommend that all employees who have been in close contact with the suspected person should be directed to work from home for at least two weeks. Employers should also clean and disinfect the workplace.
The employer can require an employee not to come to work until s/he obtains medical clearance if it suspects s/he is infected.
There is no express obligation to notify government authorities that an employee has tested positive. However, employers should cooperate with the Department of Health if investigation is conducted to trace contact.
If an employee contracts or suspects having contracted COVID-19 by accident arising out of and in the course of their employment, the employer is required to notify the Labour Department of the ‘injury’, to allow the employee to bring a potential claim under the Employee Compensation Ordinance.
Employers should act promptly as soon as they learn there is a confirmed case, and communicate in an open and transparent manner. However, employers should not disclose the identity of the infected employee to avoid any breaches of the Personal Data (Privacy) Ordinance. Employers should give assurance that they will take all reasonable steps to maintain a safe and healthy workplace for employees and list out the steps that will be taken to clean and disinfect the workplace. Employees should be reminded to assess their own potential COVID-19 symptoms daily.
Return to the work after recovery
There is no formal procedure to be followed by employers in Hong Kong. We recommend that an infected worker should only return to work if he/she satisfies the discharge criteria set out by the Centre for Health Protection (i.e. two negative test results or a positive test result for SARS-CoV-2 antibody, and that his/her clinical conditions have improved and s/he does not have a fever).
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