In our earlier article Making it Mandatory to be Vaccinated Against COVID-19: A Framework for Employers (“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 two advisories on 2 July 2021 (“First Advisory”) and 23 August 2021 (“Second Advisory“) to clarify the Singapore government’s policy on this issue and to provide guidance to employers regarding COVID-19 vaccination in the employment context.
In short, the Second Advisory states that all employers should adopt the “Vaccinate or Regular Test” (VoRT) regime as a company policy for existing employees and new hires. Employers should start taking steps to prepare their workforce early in the lead up to the VoRT regime that will be implemented from 1 October 2021. While the Second Advisory supersedes the First Advisory, the Second Advisory does still contain some of the principles set out in the First Advisory, including that employers should not terminate or threaten to terminate the employment of an employee on the basis of vaccination status alone.
In this update, we look at how the Second 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.
- All employers are encouraged to adopt the VoRT regime as a company policy and to prepare for its implementation from 1 October 2021.
- Employers should not terminate or threaten to terminate employment of employees based on vaccination status alone.
- Employers can adopt vaccination-differentiated workplace measures, including passing certain costs on to unvaccinated employees in some circumstances. Generally, these must be justifiable as reasonable and necessary for business operations and to better protect the health and safety of all employees.
- Employers may ask employees for proof of vaccination and employees who refuse to provide such proof can be treated as unvaccinated for the purposes of vaccination differentiated workplace measures.
1. A summary of the approaches to the vaccination requirement under the Second Advisory and the Article, and relevance of Article in light of Second Advisory
Under the Second Advisory, all employers are encouraged to adopt the VoRT regime as a company policy for existing and new hires, meaning that employers may implement a policy requiring vaccination in the workplace or otherwise employees will be subject to regular testing. The Second Advisory clarifies that employers may adopt VoRT on a voluntary basis, so the implementation of VoRT is not mandatory.
In the absence of the First and Second 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. In contrast, the Second Advisory at the outset states that all employers are encouraged to adopt the VoRT regime and may require employees to be vaccinated in the first instance.
However, certain principles of the Article are still relevant to the framework under the Second Advisory, namely in determining the vaccination-differentiated measures that the employer can take in the workplace, which we discuss in further detail below.
2. Vaccination-differentiated measures
Employers can adopt vaccination-differentiated measures in the workplace including the following:
- Testing: The employer can require unvaccinated employees to be regularly tested. Employers can take reference from the Ministry of Health’s guidelines on testing frequency, which is twice a week for unvaccinated employees in selected sectors.
- Work and social events: Employers may require unvaccinated employees to further undergo pre-event testing before participating in workplace events or implement reduced group sizes when unvaccinated employees participate in such events, especially for mask-off activities.
- Re-deployment: Employers may continue to deploy unvaccinated employees to higher risk settings with regular testing, but may also choose to re-deploy unvaccinated employees to another job with a lower risk for a COVID-19 infection, provided this is commensurate with the employee’s experience and skills in accordance with its existing re-deployment policies. If there are no existing re-deployment policies, then any re-deployment should be mutually agreed between the employer and employee.
- Additional costs to be borne by unvaccinated employee: Employers may also require that any costs that are expended due to the employee’s unvaccinated status be borne by the employee:
- COVID-19 related expenses: Employers may recover these costs from employees.
- Leave: Unvaccinated individuals may be discharged later from treatment or may be served with longer isolation periods as compared to vaccinated individuals. Employers can require those additional days to be taken from existing leave entitlements, and if such leave entitlements are exhausted, the employer may require the employee to go on unpaid leave.
- Medical benefits: Employers may choose to exclude unvaccinated employees from medical benefits associated with COVID-19, such as insurance coverage.
The above costs can only be recovered if these are incurred by the employer and are over and above the costs of vaccinated individuals. The employer may also not recover such costs from unvaccinated individuals are are medically ineligible to be vaccinated.
Under the Second Advisory, employers may also implement other workplace measures but must be prepared to be able to justify such measures to its employees and regulators that the measures are reasonable and necessary for business operations and to better protect the health and safety of all employees (“Reasonable and Necessary Measures“). Its is unclear from the Second Advisory what Reasonable and Necessary Measures are, but this is where the analysis under the Article can provide some a broad framework to ascertain the reasonableness – i.e., to be assessed by looking at the inherent responsibilities of the employee, the workplace safety and health requirements, and whether there are workable alternatives.
3. Other key takeaways from the Second Advisory
The other key points from the Second Advisory include the following:
- Consequences of choosing not to vaccinate: Similar to the First Advisory, the Second Advisory states that employers should under no circumstances terminate or threaten to terminate the employment of an employee based on vaccination status alone. However, employer may still exercise their contractual right to terminate employment if unvaccinated employees do not comply with vaccination-differentiated measures.
- Communication to employees: Employers should take steps to prepare their workforce in the lead up to the VoRT regime that will be implemented from 1 October 2021. Employers are urged to communicate the details of the VoRT regime to employees clearly and in advance of implementation, and also to jobseekers. If employees are unionised, the employer should also consult with the union in respect of the vaccination-differentiated measures.
- Requiring proof of vaccination status: Employers may request for proof of vaccination from employees. If employees refuse to provide proof of vaccination, then these employees may be treated as unvaccinated employees for the purposes of vaccination-differentiated measures. Please do take note that the employee’s vaccination data should be collected, used and disclosed in accordance with the requirements under the Personal Data Protection Act – the requirements are briefly discussed in the Article.
- Employers to facilitate vaccination: Employers should urge medically eligible employees to be vaccinated if they are not already vaccinated. Employers should facilitate this by granting paid time-off to employees to get vaccinated and additional paid sick leave (beyond contractual or statutory sick leave) if needed in the event that the employee experiences a vaccine-related adverse reaction.
- Adherence to other safety measures: Employers and employees alike are to be aware that mask-wearing is still mandatory in Singapore regardless of vaccination status, and should further continue to adhere to the Safe Management Measures in the workplace.
4. Final thoughts
Singapore is pushing towards the population being fully vaccinated and this sentiment is clear in the Second Advisory. The clear guidance under the Second Advisory is timely as employers may now also allow the return of some employees back into the workplace in accordance with Safe Management Measures following the recent transition out of the Phase 2 (Heightened Alert).