Legal Considerations of Vaccinating Your Employees and Conducting Covid-19 Tests

Legal Considerations of Vaccinating Your Employees and Conducting Covid-19 Tests

The Hong Kong government has announced that they intend to implement a territory-wide Covid-19 vaccination programme that is free of charge for all Hong Kong residents. The vaccines are to be provided in various settings, ranging from hospitals, private clinics, specific institutions (i.e. elderly homes) and community vaccination centres. Employers in certain industries may also wish to ask their employees to take the vaccine to ensure health and safety in the workplace. However, the prospect of requiring an employee to take a vaccine, or even a Covid-19 test, may raise certain legal issues.

Can you require an employee to take a Covid-19 test?

If an employer has reason to believe that the employee has contracted Covid-19, they may ask their employee not to attend the office and may request that they undergo a free Covid-19 test, but they may not force the employee to take this test. However, if the employment contract contains an express provision allowing the employer to direct an employee to attend medical examinations, the employer may potentially rely on this clause to require the employee to undergo a COVID-19 test. If the request is considered to be a ‘lawful and reasonable’ direction by the employer, then an employee would have a duty to comply with this direction under the common law.

It should be noted that if the Centre for Health Protection considers that there is a cluster outbreak in a workplace (i.e. two or more employees have tested positive for Covid-19) then a compulsory testing notice will be issued to all persons who have been at the workplace.

Can you make it a mandatory health and safety requirement for employees to be vaccinated and inform employers of their vaccination status?

Employers are legally required to take reasonable care of their employees’ health and safety under common law and the Occupational Safety and Health Ordinance (“OSHO”). However, it is not entirely clear whether requiring an employee to be vaccinated would be considered “reasonable” for employers to ensure safety and health in a workplace. This would most likely depend on the nature of the employee’s job and the employer’s workplace i.e. whether the employee will be working in an office environment or in a higher-risk location such as a hospital. It should also be noted that not all employees may be immediately eligible for the vaccine as the Hong Kong government has identified certain priority groups that would receive the vaccine. Hong Kong anti-discrimination law protects the characteristics of sex, pregnancy, marital status, disability, family status and race. In requiring employees to undergo vaccination, employers should take care not to discriminate against employees on the basis of these grounds.

What are the potential data privacy aspects of vaccination that employers need to be aware of?

From a data privacy perspective, if employers require employees to provide proof of their vaccination records, they will need to ensure that they comply with the Personal Data (Privacy) Ordinance (“PDPO”) as they will be collecting, retaining, processing and possibly transferring employees’ personal data. This will include ensuring that the data is not retained for a period of time longer than is necessary for the purpose for which it was collected.

What can an employer do if an employee is unable to attend work due to the government’s new “ambush-style” neighbourhood lockdowns?

Employers need to consider what alternatives they might be able to offer their employees if they are unable to attend work due to a government lockdown of their residential building. These may include suggesting that the employee works from home (or continues to work from home, if possible), take unpaid leave due to the employee being absent from work, or possibly take annual leave.

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Partner, Lewis Silkin Hong Kong

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