The Hong Kong Government has recently announced a "new direction" in relation to managing the COVID pandemic. The heart of such new direction will involve "vaccine bubbles", which will allow a relaxation of current social gathering restrictions in circumstances where all participants have received at least the first dose of a COVID vaccine.
Of most relevance, the proposed relaxations will permit restaurants, bars and pubs to operate beyond the current 10 pm curfew to 2 am. Businesses that can comply with the requirements will, therefore, be materially advantaged.
While this is clearly great news for employers in these businesses, to take advantage of the change in policy they will have to get all of their staff vaccinated.
So, what are the legal issues that these employers will face? Can employers oblige employees to get vaccinated? What can they do if an employee refuses?
We considered these questions broadly in our Legal Update "Hong Kong's COVID Vaccination Programme: Considerations for Employers". That Legal Update concluded that there is no one-size- fits-all answer to these questions and instead it would be necessary to examine the particular circumstances of an employer.
However, we now have a situation where an employer in the restaurant, bar and pub industry can materially expand its business, but only if all of the staff working have been vaccinated, with the exception of certain staff who have a doctor's note confirming they are unfit to receive such vaccination and who agree to take regular tests for COVID-19. As such, we believe we can give a clearer guidance for employers in this industry.
Our view is that where having staff vaccinated is a precondition to opening for longer and therefore to increasing revenue, then it will be reasonable for an employer to direct staff to get vaccinated. As each employee is obliged to comply with a reasonable direction of his or her employer, a failure by an employee to comply with such a direction, unless the employee has a valid excuse (e.g., a pre-existing condition which makes vaccination risky), will be a breach of contract and will therefore render the employee subject to disciplinary action.
For practical purposes we would recommend that an employer looking to get all its employees vaccinated:
- Engages closely with its employees,
- Explains to them why the vaccination is required,
- Explains the consequences of an employee failing to get vaccinated (which could, for example, be that the employee will not be able to work in the business so will not be paid), and
- Encourages employees who have concerns about vaccination to speak to the employer as early as possible.