COVID-19 vaccination and testing in China - employment law perspective

  1. Vaccination
    1. 1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 
    2. 2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?
    3. 3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?
    4. 4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?
    5. 5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).
    6. 6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 
    7. 7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?
    8. 8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?
    9. 9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.
    10. 10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 
  2. Testing
    1. 1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 
    2. 2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?
    3. 3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?
    4. 4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?
    5. 5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

Vaccination

1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 

The employer may explain the importance of being vaccinated and the potential consequences of not taking the vaccine (if any) to employees. The employer may provide additional support to employees for vaccinations, such as arranging transportation or allowing employees to take special leave during the vaccination period if any feel unwell or have side-effects.

Employers may provide financial incentives to employees to encourage them to receive vaccinations. This is not prohibited in China.

2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?

Currently, vaccinations are offered and organised by the Chinese government. All employers in China are obliged to cooperate with COVID-19 prevention and control measures formulated and published by the Chinese government, including the COVID-19 vaccination plan.

Employers should carry out registration for their employees who are willing to take vaccines, give each employee a written notification and consent letter provided by the government, duly collect and submit the information to the authority, and then organise the employees to go to the designated points for vaccination according to the schedule published by the authorities.

3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?

Yes. The employer may verify and make relevant records of the employees who have been vaccinated. But the employees may refuse to disclose these records unless vaccination status will potentially affect the performance of a worker's employment contract, such as having a work position with a high risk of exposure to COVID-19. 

4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?

No. However, employees whose performance of their employment contract may be affected by vaccinations must inform employers if asked, particularly if worker have a high risk of being exposed to COVID-19 because of their work positions.

5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).

At this time, receiving a COVID-19 vaccine is not compulsory but voluntary. Employers cannot force employees to be vaccinated. Therefore, legally speaking, a vaccination cannot be a condition of employment. 

6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 

Yes, employees can refuse to be vaccinated since vaccinations are still currently voluntary.  An employee is not statutorily obliged to give the reasons for refusing. 

7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?

Generally, an employer cannot refuse to admit unvaccinated employees into the workplace. The exception is when employees have high risk of COVID-19 exposure. In this situation, their presence in the workplace may affect the safety of the entire workforce. 

8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?

Yes. If in the opinion of the employer the employee’s continuous work in this position may cause a high risk of COVID-19 exposure in the workplace, the employer may unilaterally change the work position and duties of the employee. Legally speaking, however, the employer shall not unilaterally reduce the salaries of employees after changing their work positions without their consent.

9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.

Currently, travellers shall take a PCR test and obtain a negative certificate to board flights to China. Travellers shall also apply for a health code or health declaration with a Health Declaration Certificate by the negative certificate. After entering China, travellers will be subject to 14 days of quarantine.

No proof of vaccination is required to enter China. However, if a traveller has taken the vaccination, the result of the PRC test may be positive. In this case, proof of vaccination may be required to apply for the above health code or health declaration. 

10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 

China will launch an international travelling health code, which will contain information on PCR test results and vaccinations. China is also considering using “digital proof of vaccination + PCR test negative certificate” to replace the 14-day quarantine after entering China.

Testing

1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 

No. An employer cannot force employees to take a COVID-19 test unless these employees have a high risk of COVID-19 exposure. If high-risk employees continue to work in the workplace, they may affect the safety of the entire workforce. 

The employer is also not required to provide workplace COVID-19 tests. Nevertheless, the employer may voluntarily organise its employees to take COVID-19 tests, but employees must consent to this.  

2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?

 In China, COVID-19 tests can only be performed by the designated test institutions. If anyone wants to have a COVID-19 test, he/she may make appointment online and then go to such institutions for the COVID-19 test.

3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?

No, an employee is not obliged to share the outcome of a positive COVID-19 test with the employer. However, if the result is positive, the employee will be subject to quarantine. The government will then immediately contact the employer for an epidemiological survey.

4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?

Employees can refuse to be tested unless they have high risk of COVID-19 exposure. So far, we do not foresee testing becoming a mandatory condition of employment.  

5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

Yes. If in the opinion of the employer, an employee’s continuous work in a position may cause high risk of COVID-19 exposure and may affect the safety of the entire workplace, the employer may unilaterally change the work position and duties of the employee if the worker cannot provide a negative test certificate. Legally speaking, however, the employer shall not unilaterally reduce the salaries of employees after changing their work positions without their consent.