Skip to content

Something urgent? Call us now! (852) 3416 1711

Employees and vaccination – a complex issue

By Henry Siu

Hong Kong, 27 April 2021: Can an employer fire a member of staff for refusing to be vaccinated against Covid-19? This is an increasingly common question as Hong Kong’s mass inoculation programme enters its second month and the government ties the easing of social distancing restrictions in the F&B sector to a requirement for staff to have had at least one jab.

The answer is not straightforward. While, on the face of it, dismissal would appear to contravene discrimination laws, an employer might be able to argue it is reasonable and necessary.

A good starting point is the Occupational Safety and Health Ordinance (Cap. 509). Under this legislation, employers are obliged to provide and maintain a safe and healthy workplace. It covers almost all workplaces; in addition to factories, construction sites and catering establishments, other premises such as offices, laboratories, shopping arcades and educational institutions also come under the ambit of this law. There are a few exceptions, namely:

  • an aircraft or vessel in a public place;
  • the place occupied by the driver of a land transport vehicle when it is in a public place (but other employees working in the vehicle are covered);
  • domestic premises at which only domestic servants are employed; and
  • places where only self-employed persons work.

The Occupational Safety and Health Regulation, made under the same ordinance, sets down some basic requirements for accident prevention, fire precaution, workplace environment control, first aid and, notably, hygiene.

Dismissal of an employee for non-vaccination would, at first, glance, run contrary to the Disability Discrimination Ordinance (Cap. 487) (the “DDO’). It is unlawful to discriminate against someone “on the ground of their or their associates’ disability in respect of their employment, accommodation, education, access to partnerships, membership of trade unions and clubs, access to premises, educational establishments, sporting activities and the provision of goods, services and facilities”. It is also forbidden to harass or vilify someone with a disability and their associates.

The definition of disability under the DDO includes, among other things, the presence (whether previously existing, currently existing, may in the future exist or be imputed) in a person’s body of organisms causing and/or capable of causing disease or illness.

Less favourable treatment (in the employment context: perhaps denying promotion opportunity, reducing benefits or even dismissal) of a person with a disability is generally considered to be discrimination and unlawful under section 11(2) of the DDO. Discriminatory acts in breach of the DDO may be subject to complaint to the Equal Opportunities Commission. Such cases can be taken to court where the victim may be awarded loss of income/benefits, injury to feeling and exemplary damages on a case by case basis.

However, the Covid-19 pandemic is arguably a public health concern. Section 61 of the DDO provides that discrimination laws do not apply if a person’s disability is an infectious disease and any measure taken is “reasonably necessary to protect public health”. It is noteworthy that Covid-19 is identified as an infectious disease under Schedule 1 of the Prevention and Control of Disease Ordinance (Cap. 599).

The uncertainties make this a novel issue and, with little clarity at present, each case would need to be judged on its merits. Certainly, there will be instances where an employee cannot be vaccinated for medical reasons. Often a compromise can be found whereby he or she is assigned alternative duties.

All parties should seek to strike a balance and aim for reasonableness. Communication is important. Employers are advised to incentivise staff to get vaccinated rather than use coercive measures.

Henry Siu is a Senior Associate with BC&C. He works across a range of practice areas, bringing his experience to bear in civil and criminal litigation, company and commercial matters, personal injuries and employees’ compensation. He can be contacted at Henry@boasecohencollins.com.

35+ years of legal experience is just a click away.

Friendly and approachable, we are ready to answer your questions and offer you sound advice.

Contact us now

BC&C-contact-us

News & Knowledge

Learn more about what we do and what we say. Subscribe to our newsletter to ensure you receive our updates.

  • This field is for validation purposes and should be left unchanged.

Game of chance for unhappy campers

Hong Kong, 12 May 2021: Who didn’t love Monopoly when they were growing up? Many a rainy afternoon was passed in the Cohen household playing the popular board game, vying with my brothers and friends to become London’s biggest property tycoon while bankrupting everyone else. It was cutthroat and devoid of sentiment. If you were […]

Read more

Vicarious liability: what next for Hong Kong?

By Insurance and Personal Injury Team Hong Kong, 10 May 2021: Vicarious liability is a long-established legal principle whereby one party may be held partly responsible for the wrongful actions of another. It is a scenario frequently encountered in personal injury cases where an employer is deemed liable for the wrongful act of an employee […]

Read more

An entirely avoidable domestic dispute

Hong Kong, 5 May 2021: There is a wall-mounted plaque in the BC&C office of which we are particularly proud. It was presented to us three years ago by the Mission For Migrant Workers in recognition of our assistance over the course of three-plus decades. Specifically, my long-time colleague Mel Boase has dedicated much of […]

Read more

Disaffected young require injection of hope

Hong Kong, 28 April 2021: More than 10,200 people have been arrested since mid-2019 in connection with the anti-government protests, according to official updates presented to the Legislative Council. Around two-thirds of them are under 25. This is not just a heartbreaking statistic, it’s a lost generation. Last month, I highlighted in this column a […]

Read more

Employees and vaccination – a complex issue

By Henry Siu Hong Kong, 27 April 2021: Can an employer fire a member of staff for refusing to be vaccinated against Covid-19? This is an increasingly common question as Hong Kong’s mass inoculation programme enters its second month and the government ties the easing of social distancing restrictions in the F&B sector to a […]

Read more