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In brief

The Hong Kong government recently announced that three types of COVID-19 vaccines will be available for the city’s residents, raising hopes of things returning to business-as-usual in the not too distant future. While the specifics of the vaccine rollout are still unknown, employers have many questions on what this means in practice. Issues include how the vaccine can be used to protect workforces as well as an understanding of employer responsibilities in relation to the offering of vaccines to employees.


Key considerations for employers in Hong Kong

While we anticipate that most employers in Hong Kong will not impose any mandatory vaccination policy for their employees, some employers across different industries may be considering the possibility of enforcing mandatory vaccinations among staff and how to treat workers who opt out of being vaccinated. Could such individuals be prevented from doing certain types of work, from entering a workplace, or from being offered a job?

We expect that the Hong Kong government will likely offer some direction as the vaccines become more readily available. In the US, the Equal Employment Opportunity Commission (EEOC) has issued regulatory guidance on this topic.

In the absence of such local guidance, existing frameworks and previous legal decisions around workforce vaccinations, such as for the flu, help to identify some of the key issues for employers in applying a vaccination policy:

  • Accommodating medical conditions and/or disabilities: In Hong Kong, employees are protected from disability discrimination and the definition of “disability” in the Disability Discrimination Ordinance is broad. Individuals who have certain medical conditions (including mental health conditions) may have reason to be concerned about the effect of the vaccine. Such individuals, who are not recruited because of their vaccine status, may have claims against an employer who insists that they be vaccinated as a condition of their employment. Businesses will need to consider whether there are other means to protect the workforce in seeking to avoid such risks.
  • Accommodating different belief systems: Individuals may have religious beliefs that prohibit vaccination or prevent their use where they may be derived from prohibited animal products, for example. While there are no anti-discrimination laws in Hong Kong targeting discrimination of religious beliefs, employers may still want to consider whether they should accommodate different belief systems when determining how to apply any policy on vaccinations.
  • Human rights: In Hong Kong, the International Covenant on Civil and Political Rights (ICCPR) is recognized pursuant to Basic Law Article 39. The right to self-determination under Article 1 of the ICCPR, while not formally ratified in local law, may present a challenge to enforcing a vaccination. Courts would likely take this into account when determining the fairness or validity of such a policy, and employers would need to ensure that they fully assess the risks in light of such legislation.
  • Personal injury: With reports that there may be side effects from some of the vaccines, employers may be concerned about the risk of a claim in the event an employee becomes ill or dies as a result of being vaccinated. Whether an employer is potentially liable in such circumstances will largely depend on whether the vaccine is enforced by the employer or taken voluntarily by the employee. Of relevance are laws relating to work injury liability (including the Employee’s Compensation Ordinance and the Occupational Safety and Health Ordinance), along with coverage under the relevant insurance policies.
  • Data privacy: Information about who has and who hasn’t been vaccinated would be sensitive data that would need to be kept securely and handled in accordance with the Personal Data (Privacy) Ordinance. Such information may be held by an intermediary, depending on who is engaged for the purposes of administering any vaccine, and caution would need to be taken about: a) who had access to this information; and b) any decisions made about discipline, dismissal or recruitment based upon such data.

Conclusion

Comprehensive consideration of the challenges of applying a COVID-19 vaccine policy at this early stage of the global vaccination rollout will help to identify the right strategy in implementing a vaccination program. Companies should monitor government guidance in relation to the use of vaccine and consider existing frameworks for vaccination policies that may apply in their industries and/or jurisdictions as they plan their vaccination programs.

Author

Rowan McKenzie is a principal in Baker McKenzie's Employment Law Group in Hong Kong. He is consistently recognized as a leading lawyer for employment by Chambers Asia Pacific and Legal 500 Asia Pacific. Prior to joining Baker McKenzie, Mr. McKenzie served as the head of the Asia Employment and Incentives practice at another international law firm based in Hong Kong. Mr. McKenzie has authored numerous articles on Hong Kong employment law and is an editorial board member for LexisNexis Practical Guidance.

Author

Ms. Wong is a Special Counsel in the Employment team in Baker McKenzie Hong Kong. She is known for her knowledge of employment and labour related laws. She has advised numerous clients across multiple industries such as consumer goods & retail, information technology, pharmaceutical, insurance, and banking and finance, on various employment issues.

Author

Ken Ng is an Associate in Baker McKenzie's Hong Kong office.