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.