COVID-19 vaccination and testing in Hong Kong - employment law perspective

There are no general restrictions on employers from encouraging employees to be vaccinated.

Yes, the employer may provide a financial incentive to employees.

Ref:
COVID-19 Vaccination Programme - Booking System - (COVIDvaccine.gov.hk)
About the Programme (COVIDvaccine.gov.hk)

2.1 Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees?

No, an employer is not obligated to offer vaccines to employees. It may voluntarily offer to help employees obtain vaccines through proper channels, but it cannot offer vaccines to its employees because vaccines are not registered drugs for private use by companies.

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

No, an employer is not obliged to support government institutions to provide vaccines to employees. Employees who wish to get vaccinated must register for an appointment voluntarily. The Hong Kong Special Administrative Region (HKSAR) Government will be solely responsible for vaccine procurement.

Yes, employers can verify whether employees have been vaccinated by examining vaccination records. After vaccinations, individuals will receive paper vaccination records. They can also download their electronic vaccination records via the "iAM Smart" mobile app, or through the “eHealth” mobile app. 

There is no restriction under the Employment Ordinance prohibiting an employer from making a record of vaccinated employees. Employers should ensure that only information necessary for internal records are collected since this information is subject to protection under the Personal Data (Privacy) Ordinance (Cap. 486).

No. Subject to the terms of each employment contact, there is no general duty under the law or regulations requiring employees to inform their employer whether they have been vaccinated.

There is no restriction under the law and regulations, which expressly prohibits the employer from making vaccination obligatory for employees as a condition of employment. 

According to the latest requirements, the Targeted Group of airport workers (both new employees or existing employees and including airline staff) will require vaccinations with no option of producing negative results for vaccinations or obtaining medical exemption from vaccinations. These vaccinations will be implemented in phases:

• From 1 September 2021, airport operators including airlines must only deploy vaccinated staff to perform the relevant duties. Staff in the Targeted Group are mandated to complete at least one dose of vaccination. Those who have completed one dose or are fully vaccinated are required to undergo a test every seven days.
• From 30 September 2021, Staff in the Targeted Group must have received two vaccination doses and are required to take a test every seven days.

New Employees

There are no restrictions under the law and regulations restricting employers from including vaccinations as a condition of employment under a new employment contract, except to the extent that it is related to the non-payment of wages. Given that vaccinations are an arrangement to prevent infectious disease, it is unlikely that such a policy will constitute discrimination under the Disability Discrimination Ordinance (Cap. 487). 

Existing Employees

According to section 32K of the Employment Ordinance (Cap. 57), an employer is allowed to dismiss or vary the terms of the employment contract only under a limited number of conditions. Failing to comply with it will entitle employees to make claims against the employer with the Labour Tribunal. 

Making vaccinations obligatory could be considered varying the terms of  employment. However, this point, from our knowledge, has been untested in the Hong Kong courts/Labour Tribunal and should, in any event, depend on the unique circumstances of each case. If an employer is planning to do so, it is advised that the employer should seek independent legal advice.

Generally speaking, all the vaccinations in Hong Kong are currently carried out on a voluntary basis, and employees (apart from those in the Targeted Group) are not obliged under the law to get vaccinated or to provide reasons for such a refusal. 

HKSAR Government continues to require staff of the Targeted Group to receive vaccination as soon as possible. For certain businesses under the Targeted Group, if employees cannot provide vaccination records they will have to provide regular testing results (at their own expenses). From 1 September 2021, airport operators including airlines (which falls under the Targeted Group) must only deploy vaccinated staff to perform all relevant duties.

In terms of whether or not employees can refuse a request from an employer to be vaccinated, see answer to point 5 above. 

Yes. An employer can refuse to admit employees into the workplace if they are not vaccinated. It is also possible to make two categories of employees.

According to the Health Advisory on Prevention of Coronavirus Disease (COVID-19) in the Workplace issued by the Centre for Health Protection (https://www.chp.gov.hk/files/pdf/nid_guideline_workplace_eng.pdf), it appears that refusing to admit employees into the workplace or making two categories of employees are likely beyond what is reasonably practicable as required under section 32K of the Employment Ordinance. However, it does not restrict the employer from doing the same.

Landlords do not have the power to prevent entry of a tenant’s employees. Subject to the terms of the lease or tenancy agreement, the landlord may not unreasonably prohibit employees from entering the building. If a tenant’s employee has breached a term in the lease or tenancy agreement, this may form the basis for refusing entry (temporarily or permanently). Public policy reasons (such as health and safety, e.g. COVID-19) may also be a reasonable justification.

New Employees 

Yes. Subject to the terms of each employment contract, there is no restriction under the law and regulations prohibiting an employer from requesting vaccination status (or proof) for new employees.

Section 61 of Disability Discrimination Ordinance (Cap. 487) specifically states that employment arrangements made based on infectious disease (including COVID-19 as per the definition under Prevention and Control of Disease Ordinance (Cap. 599)), will not constitute discrimination. 

Existing Employees

The arrangement will depend on whether the business falls under the Targeted Group. If the business falls under the Targeted Group, then the employer may request vaccination status (or proof by means of an app). If the business does not fall under the Targeted Group, there is no restriction under the law and regulations expressly prohibiting the employer from requesting an employee's vaccination status (or proof of vaccination) so long as this arrangement does not constitute discrimination under s.61 of Disability Discrimination Ordinance (Cap. 487).

Third Parties (visitors, suppliers, employees of suppliers, contractors)

The arrangement will depend on whether the business falls under the Targeted Group. If the business falls under the Targeted Group, the employer may be justified in requesting vaccination status (or proof of vaccination).

Ref: 
Cap. 487 Disability Discrimination Ordinance (elegislation.gov.hk)
Cap. 57 Employment Ordinance (elegislation.gov.hk)

From 1 September 2021, the HKSAR government will accept vaccination records recognised under the EU DCC mechanism as recognised vaccination records required for the purpose of boarding flights for Hong Kong from specified places.

Yes. Depending on where the venue of the external event is and whether the venue falls under the Targeted Group.

There is currently no requirement to show proof of vaccination before entering Hong Kong. However, there are certain boarding requirements when travelling to Hong Kong, which include the need to present a negative result of a nucleic acid test for COVID-19 conducted within 72 hours before the scheduled time of departure of the aircraft, and there are quarantine requirements upon arrival in Hong Kong. In general, travellers are classified as: 

• inbound travellers (traveller coming from China, Macau or Taiwan);
• inbound traveller from dangerous places (Group A, Group B or Group C);
• crew members; and 
• others.

For the detailed and up-to-date arrangements for each type of traveller, see: https://www.coronavirus.gov.hk/eng/inbound-travel.html 

New Employees

In relation to new employees, there are no restrictions/guidance under the law and regulations for employers to oblige an employee to travel for business purposes and who will bear the costs for this testing (if required). These issues will be subject to the terms of the employment contract.

Existing Employees

In relation to existing employment, since there are no restrictions/guidance under the law and regulations for the employer to oblige the employee to travel for business purposes and who will bear the costs for such testing (if required), these issues will be subject to the terms of the employment contract.

Ref: 
http://www.gld.gov.hk/egazette/pdf/20182221/es12018222121.pdf 
Cap. 57 Employment Ordinance
Cap. 487 Disability Discrimination Ordinance 
Cap. 599J Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation 

Latest Development of the Vaccine Programme

With effect from 1 September 2021, all employees of the government, the Hospital Authority (HA), residential care homes for the elderly and for persons with disabilities as well as employees at kindergartens, primary and secondary schools are required to take regular virus tests outside working hours at their own expenses if they have not been administered the Coronavirus Disease 2019 vaccines (the vaccines). Also, all personnel who may come into contact with inbound travellers are subject to compulsory vaccination, and face-to-face school classes may resume fully only if the vaccination rate among schoolchildren has reached 70%.

Ref:
LCQ3: Vaccination against Coronavirus Disease 2019 (info.gov.hk)

Targeted Group 

Yes. If any employee (either new or existing one) falls within the Targeted Group, then this employee will be obliged to take a COVID-19 test according to the Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (Cap. 599J). 

With effect from 1 September 2021, all employees of the government, the Hospital Authority (HA), residential care homes for the elderly and for persons with disabilities as well as employees at kindergartens, primary and secondary schools are required to take regular virus tests outside working hours at their own expenses if they have not been administered the Coronavirus Disease 2019 vaccines.

If so, is the employer required to provide workplace COVID-19 tests? 

No, all compulsory testings will be and must be conducted by the government or designated clinics at specific places.

New Employees falling outside the Targeted Group 

Yes. There are no restrictions under the law and regulations prohibiting employers from making COVID-19 tests obligatory for employees. 

Existing Employees falling outside the Targeted Group 

Such an arrangement is unlikely to constitute discrimination under s.61 of Disability Discrimination Ordinance (Cap. 487).

According to section 32K of the Employment Ordinance (Cap. 57), an employer is allowed to dismiss or vary the terms of an employment contract only under a limited number of conditions, which give sufficient cause to warrant the dismissal of the employee or to vary the terms of the contract of employment.

Making COVID-19 test obligatory may be considered varying the terms of the employment.

Can employer voluntarily provide the test at the work place? 

Yes, there are no general restrictions prohibiting employers from providing COVID-19 tests voluntarily to its employees in the work space. However, such voluntary test results would not be recognised by the government for compulsory testing purposes. As to whether such tests can be made mandatory for employees, refer to the above discussion. 

Employees falling within the Targeted Group 

Targeted Group of airport workers must have received two doses of a COVID-19 vaccine, and are required to take COVID-19 tests every seven days.

Other employers may be exempted from testing if they are fully vaccinated.  However, the requirements for some groups are different and they may change from time to time – both employers and employees should check government announcements and publications regularly.

Tests can only be carried out by licensed doctors or nurses at specific sites or clinics to satisfy the requirement for testing for persons falling within the Targeted Group.

Employees falling outside the Targeted Group 

There are no requirements for the timing of tests, and a test can be done by any one at any time, but the results of voluntary testing is not recognised by the government for compulsory testing purposes.

Employees falling within the Targeted Group 

Yes. According to Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation Cap. 599J, employers are required to keep records of employees who have received the specified tests and the results within the time frame specified by the government (according to the announcement or publication). Employers must co-operate with checking officers when required.

Employees falling outside the Targeted Group 

There are no express restrictions under the laws and regulations prohibiting employers from requesting COVID-19 test results from employees. Employers should ensure that only necessary information for internal records are collected because this information is protected by the Personal Data (Privacy) Ordinance (Cap. 486). 

New and Existing Employees falling within the Targeted Group 

No, they cannot. Employees (both new and existing ones) cannot refuse to be tested if they fall within the Targeted Group. Such testing will be mandatory for their employment and failing to do so will attract criminal liability. It will also allow the employer to lawfully dismiss employees in accordance with the Employment Ordinance based on the reason that continuing such employment will cause the employer and/or employee to contravene the law.

Any person who fails to comply with the compulsory testing notice or compulsory testing direction commits an offence and the maximum penalty upon conviction is a fine at level 3 (HKD 10,000). The fixed penalty for discharging liability for the offence is HKD 5,000. The person would also be issued with a compulsory testing order requiring the individual to undergo testing within a specified timeframe. Failure to comply with such an order is an offence and the offender would be liable for a fine at level 4 (HKD 25,000) and imprisonment for six months.

New Employees falling outside the Targeted Group

No. If employers make COVID-19 tests obligatory for their employees, employees will not be able to refuse to take such a test if it is a condition under the newly entered employment contract.

Under section 6 of Occupational Safety and Health Ordinance (Cap. 509), an employer has a duty, so far as reasonably practicable, to ensure the safety and health at work of all its employees. It would be an offence for the employer to fail to provide or maintain a working environment for employees that is, so far as reasonably practicable, safe and without health risks. When there is a discussion as to what constitutes reasonably practicable, even if making COVID-19 testing obligatory is not required by s.6 of Occupational Safety and Health Ordinance, the employer is still not prohibited from carrying out such an arrangement and employees will not be able to refuse this requirement if they have agreed to these terms when entering into the employment agreement.  

Furthermore, section 61 of Disability Discrimination Ordinance (Cap. 487) specifically states that employment arrangements based on infectious diseases (including COVID-19 as per the definition under Prevention and Control of Disease Ordinance (Cap. 599)) will not constitute discrimination. 

Whether testing should become a mandatory condition for employment would depend on the employer and the job nature. There are no regulations requiring employers to make testing mandatory unless the industry falls within Targeted Group.

Existing Employee falling outside the Targeted Group 

In short, based on current the employment contract (which presumably does not include compulsory testing), existing employees can refuse to be tested if they fall outside the Targeted Group.

Apart from the analysis above, employers should be aware that according to section 32K of the Employment Ordinance (Cap. 57), they are allowed to dismiss or vary the terms of an employment contract only under a limited number of situations.- 
Employees who are dismissed or whose terms of contract are varied, apart from the reasons stated under s.32K EO, are entitled to file claims against the employer at the Labour Tribunal. 

A variation of an employment agreement making COVID-19 tests mandatory for employees as a condition of employment may fall within the exceptions under s.32K EO. However, this point, from our knowledge, has been untested in the Hong Kong courts and tribunals. In any event, as each case depends on their unique circumstances, employers who plan to make testing mandatory should seek further legal advice before doing so. 
 
Reference: 
Cap. 57 Employment Ordinance (elegislation.gov.hk)
Cap. 599J Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (elegislation.gov.hk)
Personal Data (Privacy) Ordinance (Cap. 486)
Disability Discrimination Ordinance (Cap. 487)
Employment Ordinance (Cap. 57)
Occupational Safety and Health Ordinance (Cap. 509) 

soning, please refer to the answer in Question 11 “Existing Employees falling outside the Compulsory Group”. 

New Employees 
 

Yes. Subject to the terms of each employment contract, there is no restriction under the laws and regulations, which prohibits employer from doing so. Given it is an arrangement to prevent infectious disease, it is unlikely that it will constitute discrimination under the Disability Discrimination Ordinance (Cap. 487). 

Existing Employees

For the same reason as stated above, such an arrangement will not constitute discrimination under s.61 of the Disability Discrimination Ordinance (Cap. 487).

According to section 32K of the Employment Ordinance (Cap. 57), an employer is allowed to dismiss or vary the terms of an employment contract only under a limited number of conditions. Failing to comply with the contract will entitle the employees to file claims against the employer at the Labour Tribunal. 

Employees who are dismissed or whose terms of contract are varied, apart from the reasons stated under s.32K EO, would be entitled to file claims against the employer at the Labour Tribunal. Whether such an arrangement violates the above section under the Employment Ordinance would depend on the terms and conditions of the employment contract. If the employer is planning to assign different duties to employees, it is advised to first seek independent legal advice.

Ref:
Cap. 57 Employment Ordinance (elegislation.gov.hk)
Cap. 599J Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (elegislation.gov.hk)
COVID-19 Thematic Website - Together, We Fight the Virus - Compulsory Testing for Certain Persons (coronavirus.gov.hk)
Personal Data (Privacy) Ordinance (Cap. 486)
Disability Discrimination Ordinance (Cap. 487)
Employment Ordinance (Cap. 57)
Occupational Safety and Health Ordinance (Cap. 509)

As at 20 September 2021, Targeted Group includes:

• Staff of catering business / schedule premises
  • Type B Mode of Operation
  • Type C Mode of Operation
  • Type D Mode of Operation
  • Bars or pubs
  • Reopened scheduled premises
• Staff of public and private swimming pools / beaches
• Construction site personnel (implemented voluntarily by the construction industry), including registered construction workers and other resident site personnel
• Staff of quarantine hotels
• Staff of specified hotels
• Staff of designated transfer to designated qurantine hotels
• Working staff accompanying and receiving local group tours, including tourist guides, tour escorts, staff seeing off the groups, drivers of chartered tour coaches and crew of chartered ferries, etc.
• Airport staff, including those handling high-risk cargo or having unavoiable close-range contact with arrival and transfer/transfit passengers and crew, the with Terminal 1 and restricted areas of the Hong Kong International Airport as their usual place of work
• Practiioners working at Sheung Shui Slaughterhouse, including workers of operators, importers, buyers and transportation companies, etc.
• School staff, including teaching and non-teaching staff directly employed by schools, perons who provide on-campus services and persons who frequently visit school campuses

Persons eligible for booking a free COVID-19 test every three days

• Staff of quarantine hotels and specified hotels (fully vaccinated persons: every seven days)
• Staff of designated transport to designated quarantine hotels (fully vaccinated persons: every seven days)

Persons eligible for booking a free COVID-19 test every seven days

• Staff of catering businesses and bars/pubs
• Staff of re-opened scheduled premises
• Airport staff (fully vaccinated airport staff not under "targeted group": every 14 days)
• Practitioners working at Sheung Shui Slaughterhouse (SSSH)

Persons eligible for booking a free COVID-19 test every 14 days

• Staff of designated scheduled premises and public and private swimming pools/beaches (staff of individual premises operating under certain modes or capacities: every seven days)
• Construction site personnel
• School staff

Other persons eligible for booking a free COVID-19 test

• Working staff accompanying and receiving local group tours (to undergo one test within seven days before the tour, and no more than one free test every seven days)

Useful links: COVID-19 Thematic Website - Together, We Fight the Virus - Compulsory Testing for Certain Persons (coronavirus.gov.hk)

COVID-19 Thematic Website - Together, We Fight the Virus - COVID-19 Testing Service for Designated High-risk Groups (coronavirus.gov.hk)