Damien Laracy, Partner and Head of the Hong Kong Office, and Nicole Wong, Associate, Hill Dickinson Hong Kong, summarise the most salient issues of the ‘no jab, no job’ debate, and discuss whether an order for employees to receive the Covid-19 vaccination could be considered lawful and reasonable.
With hopes of a gradual return to normality through achieving herd immunity, the HKSAR Government has implemented a territory-wide Covid-19 vaccination programme free of charge for all Hong Kong residents. However, vaccination rates remain suboptimal. As the government considers ways to encourage vaccination uptake, by conditionally relaxing social distancing measures, many employers are contemplating the idea of ‘no jab, no job’.
In this context, ‘no job’ pertains to summary dismissal by employers only – as opposed to employment termination by notice (or payment in lieu of notice) – where no motive for termination needs to be disclosed.
Summary dismissal is the immediate termination of the employment contract by the employer without notice or payment in lieu of notice. The employee, often disgruntled, is usually asked to leave the workplace immediately with no notice or monetary compensation. This is a serious disciplinary procedure and employers should exercise caution in order to reduce exposure to legal claims in the Labour Tribunal.
Section 9(1) of the Employment Ordinance (Cap 57) entitles an employer to dismiss an employee summarily, only if they:
- wilfully disobey a lawful and reasonable order
- misconduct themselves
- are guilty of fraud or dishonesty, or
- are habitually neglectful in their duties, or
- if there are any other grounds on which the employer would be entitled to terminate the contract without notice at common law.
Barack Obama: ‘I make no apologies for being reasonable’
Obama may not have had mandatory vaccinations for his staffers in mind when he made this statement on 15 August 2011, but what follows in his remarks is equally relevant to the present topic: ‘lives are at stake and the economy is at stake and our children’s future is at stake’.
So considering actual and potential ravages of the Covid-19 pandemic, would an order for employees to receive Covid-19 jabs be considered lawful and reasonable?
The first point of reference is naturally the relevant employment contract, which contains the terms agreed between the employer and the employee. If there has been a prior agreement in respect of vaccinations (or more broadly, aspects of the employee’s health), it may be easier for the employer to infer (or assert) that an order to get inoculated is legal and reasonable.
However, in reality, most employment contracts do not contain sufficiently precise terms for such conclusive determinations to be formed. Without a clear and unambiguous clause on vaccination in the contract, there is no definitive confirmation that it is lawful and reasonable for employers to demand that employees receive vaccinations (and to fire them if they fail to comply). While employers have an obligation to create a safe and healthy workplace pursuant to the Occupational Safety and Health Ordinance (Cap 509), a plethora of uncertainties plagues this area of law.
Generally, it is not unlawful for someone to take (or to encourage another person to take) the Covid-19 vaccine. However, in cases where the employee has a pre-existing condition that renders it unsafe for him or her to take the vaccine, instructions that he or she does so would likely be considered unlawful if it resulted in a reasonable apprehension of danger to the employee’s life.
In respect of reasonableness, an employee has no obligation to follow instructions that do not relate to the job capacity in which they were employed. Accordingly, the job nature and work responsibilities of the employee will be highly relevant in determining reasonableness. For example, the Fair Work Commission of Australia concluded very recently that it could be lawful and reasonable to compel employees working at childcare centres and elderly care homes to receive a flu vaccination, and failure to comply could justify termination of employment.
The considerations become more complex where social distancing restrictions imposed on businesses such as restaurants and bars are conditional upon the vaccination rates of their staff members. Typically, employees have an obligation under common law not to act in such a way as to cause loss to, or disrupt the operation of, the employer’s business. A breach of any common law duty could justify summary dismissal under the Employment Ordinance.
Consider the following scenario: 9 out of 10 employees are vaccinated and the remaining employee refuses to do so, such that the employing restaurant is unable to enjoy relaxed social distancing measures pursuant to the government’s Covid-19 vaccine incentive programmes, resulting in loss of profits for the restaurant. It may well be that ordering the remaining employee to be vaccinated could be deemed as reasonable.
Ultimately, whether an instruction from an employer is lawful or reasonable will be assessed based on the facts on a case-by-case basis. Wrongful termination may lead to monetary compensation being awarded to the employee. Employers are advised to seek legal advice.
Is a vaccinated employee preferable over one who is not?
Since the Hong Kong legal system offers protection against direct and indirect discrimination against disability, the definition of which includes the presence of organisms causing (or capable of so doing) disease or illness, employers should take care not to treat employees (or future hires) more or less favourably, based on whether they have been inoculated. Discrimination allegations may result in investigations being conducted by the Equal Opportunities Commission.
It is worth noting that it is not unlawful to discriminate against an employee with an infectious disease (including severe respiratory disease associated with a novel infectious agent) if it is reasonably necessary for the protection of public health.
In addition, in recording which employees have taken the Covid-19 jab and which have not, employers should bear in mind the requirements under the Personal Data (Privacy) Ordinance (Cap 486) in respect of collecting, handling and using personal data. In particular, employers should take all practicable steps to ensure that personal data collected is:
- accurate and not kept longer than is necessary
- used only for the purpose for which it is collected
- protected against unauthorised or accidental access, use or loss, and
- accessible by the employee to which the data relates.
Damien Laracy, Partner and Head of the Hong Kong Office, and Nicole Wong, Associate
Hill Dickinson Hong Kong
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