In our earlier article Making it Mandatory to be Vaccinated Against COVID-19: A Framework for Employers1 (“Article“), we considered the issue of whether employers can require employees to be vaccinated against COVID-19 based on the existing legal framework at the time. Since then, the Ministry of Manpower, National Trades Union Congress and Singapore National Employers Federation released an advisory on 2 July 2021 to clarify the Singapore government’s policy on this issue and to provide guidance to employers regarding COVID-19 vaccination in the employment context (“Advisory“).
In short, the Advisory states that while employers should encourage their employees to get vaccinated, employers should not make COVID-19 vaccination mandatory for their employees unless employees are exposed to higher risks of COVID-19 infection. In such cases, employers may require such employees to be vaccinated as a matter of company policy. Nevertheless, employees who decline vaccination should not be penalised. Instead, employers should explore alternative arrangements with those who decline vaccination.
In this update, we look at how the Advisory adds to our discussion in the Article, and elaborate on the guidance provided for employers who may want to adopt a COVID-19 vaccination requirement for employees in high-risk employment settings.
- Employers should generally not require employees to be vaccinated against COVID-19, but may encourage and facilitate employees to be vaccinated.
- The exception is where employees are in high risk settings, in which case the employer may require employees to be vaccinated.
- Employers should under no circumstances penalise employees who refuse to be vaccinated (i.e. by terminating or threatening to terminate employment), regardless of whether or not the employees are in high risk settings.
- A tighter approach to a vaccination requirement under the Advisory? – A summary of the approaches on whether employers can require employees to be vaccinated
Under the Advisory, employers generally should not make COVID-19 vaccination mandatory for employees. However, the exception to this is where employees are in settings where their risk of a COVID-19 infection is higher, either because of work circumstances or living conditions. If employees are in higher risk settings, employers may require employees to be vaccinated as a company policy.
The Advisory states that a useful reference point as to whether or not an employee is in a higher risk setting is if the employee is already under an existing requirement to undergo Rostered Routine Testing or mandated Fast and Easy Testing, or is in regular contact with known COVID-19 cases. Examples of higher risk settings include laboratory employees working on COVID-19, employees in regular contact with COVID-19 cases, aircrew, frontline maritime workers, hotel employees in contact with people serving the Stay Home Notice, employees living in dormitories, professional athletes, employees in the construction and marine shipyard sectors, and process employees (apart from headquarter employees not deployed to work sites).
In the absence of the Advisory, our legal position in the Article on whether an employer can require employees to be vaccinated is determined by whether the requirement is a lawful and reasonable direction of the employer – assessed by looking at the inherent responsibilities of the employee, the workplace safety and health requirements, and whether there are workable alternatives such as wearing a mask or working from home. There are narrow circumstances in which a vaccination requirement would be a lawful and reasonable direction by the employer under the Article. However, the position under employment law as set out in the Article is arguably a more flexible assessment as to whether an employer can require employees to be vaccinated, given the multiple factors to be considered before arriving at a conclusion, whereas the Advisory is clear at the outset that employers should generally not make the COVID-19 vaccination mandatory for employees.
In any case, there is ultimately a practical alignment between the Article and Advisory in that employers should generally not require employees to be vaccinated against COVID-19 unless there are good reasons that warrant a requirement to do so (as outlined above).
Interestingly, the Advisory does also say that while employers should not make COVID-19 vaccination mandatory for employees generally, employers should encourage and facilitate medically eligible employees to be vaccinated against COVID-19 (e.g. by granting paid time-off to employees to get vaccinated). Essentially, the Advisory seems to strike a balance the employee’s personal agency and the greater public good in having the Singapore population vaccinated against COVID-19, which is in line with our understanding of the Singapore government’s policy on the matter.
- Other key takeaways from the Advisory
Under the employment law assessment in the Article, termination of employment of an employee who declines vaccination is generally not a ground for termination, but an employer may consider termination of employment of the employee, if the vaccination requirement is a lawful and reasonable direction by the employer and the employee does not follow such direction. However, the Advisory is clear on the Singapore government’s policy that employees who decline vaccination should not be penalised such as by having their employment terminated or be threatened with termination, regardless of whether or not the employees are in a high risk setting. Accordingly, employers should take note of this clear and absolute position under the Advisory that modifies the position under the employment law assessment in the Article.
If an employer requires employees working in higher risk employment settings to be vaccinated, the Advisory provides that the employer should do the following:
- Provide employees who suffer from immediate adverse medical complications arising from COVID-19 vaccination with additional paid sick leave (beyond contractual and statutory requirements);
- Exempt employees from the requirement to be vaccinated if they are identified as being medically unsuited to receive COVID-19 vaccinations (e.g. individuals who are pregnant or severely immunocompromised) or who have not been scheduled for the vaccination;
- For employees who decline vaccination, employers may consider implementing the following measures:
- Redeploy such employees to another job with lower risk of COVID-19 infection that is commensurate with the employees’ experience and skills. This may be done in accordance with existing redeployment policies or mutually agreed terms and conditions between the employer and employee;
- Recover COVID-19 related costs (e.g. costs of COVID-19 testing, costs of Stay Home Notice accommodation) incurred by the employer from such employees, that are over and above the costs incurred for vaccinated employees in similar employment settings;
- Any other mutually agreed measures between the employer and the union.
- Communicate clearly to affected employees the following matters and make reasonable efforts to determine why employees have declined vaccination and address their concerns.
- Reassure employees that they will not be penalised or have their employment terminated for declining COVID-19 vaccination;
- Explain the jobs or employment settings which expose employees to a higher risk of COVID -19 infection and the reasons for requiring such employees to get vaccinated;
- Explain the measures taken by the employer towards employees who decline vaccination (e.g. redeployment, cost recovery, differentiated leave arrangements); and
- Plan for any assistance to be offered to employees who suffer from adverse complications due to the vaccination requirement.
- Final thoughts
In conclusion, the guidance provided in the Advisory is a welcomed development as it provides greater clarity from a policy perspective on when employers may require their employees to be vaccinated against COVID-19, while providing safeguards to employees who decline to get vaccinated against COVID-19. It also provides clear guidance to both employers and employees on the employer’s obligations, in the event that the employer adopts a vaccination requirement, facilitating greater transparency and dialogue between the parties.
1 Zhao Yang Ng, Esther Pang, Chuan Lee, ‘Making it Mandatory to be Vaccinated Against COVID-19: A Framework for Employers’, April 2021 [https://lawgazette.com.sg/feature/making-it-mandatory-to-be-vaccinated-against-covid-19/]