COVID-19 vaccination and testing in Hong Kong - 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? 

There are no general restrictions preventing an employer from encouraging employees to be vaccinated.

Yes, the employer may provide a financial incentive to employees. However, due to the limited supply of vaccines in Hong Kong, government-procured (which are currently the only source) vaccinations are not available to people outside of the priority groups (please see https://www.covidvaccine.gov.hk/en/programme). 

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?

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 the 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.

At the moment, due to the availability of vaccines, only people within the priority group can make an appointment under the government vaccination scheme. (please see https://www.covidvaccine.gov.hk/en/programme)

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

Yes, employers can verify employees’ vaccinations by examining paper vaccination records, which individuals receive after they are vaccinated. Employers can also download employee 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 only information necessary for internal records are collected because the information is subject to protection under the Personal Data (Privacy) Ordinance (Cap. 486).

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

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

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?).

There is no restriction under the laws and regulations, which expressly prohibit the employer from making vaccinations obligatory for employees as a condition of employment. In practice, employers must be aware that currently only people within the priority group can make appointments for vaccinations in Hong Kong.

New Employees

There are no restrictions under the laws 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 it is an arrangement to prevent infectious disease, it is unlikely that it will constitue 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 at the Labour Tribunal. 

Making vaccination obligatory may be considered as 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 the employer is planning to do so, it is advised that the employer should seek independent legal advice.

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

Generally speaking, currently all the vaccinations in Hong Kong are carried out on a voluntary basis, and employees are not obliged under law to get vaccinated or to provide reasons for a refusal. In terms of whether or not employees can refuse a request from an employer to be vaccinated, please see answer to point 5 above. 

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)?

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 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 likely exceed what is reasonably practicable as required under section 32K of the Employment Ordinance. However, it does not restrict the employer from taking these actions.

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

New Employees 

Yes. Subject to the terms of each employment contract, there is no restriction under the laws and regulations, which prohibits employers from instructing new and non-vaccinated employees to perform different duties than those of vaccinated employees. Given that this is an arrangement to prevent the spread of an infectious disease, it is unlikely that this policy will constitute discrimination under the Disability Discrimination Ordinance (Cap. 487). 

Existing Employees

An employer may assign different duties to non-vaccinated employees to an extent that the duties are covered under the original employment contract. As stated above, such an arrangement will not constitute discrimination under s.61 of Disability Discrimination Ordinance (Cap. 487).

Whether such an arrangement would violate the Employment Ordinance depends on the terms and conditions of the employment contract. If the employer is planning to assign different duties to employees, they should first seek legal advice on the matter.

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

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);
  • traveller from dangerous places;
  • crew members; and 
  • others.

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

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

  • In light of the current situation, the Government will extend the expiry dates for the regulations including quarantine requirements, social distancing requirements, compulsory mask wearing and compulsory testing, etc. for six months to 30 September 2021.
  • The government resumed the traveling-bubble arrangement with Singapore where travellers are exempt from a 14-day quarantine if certain conditions are fulfilled. 

https://www.info.gov.hk/gia/general/202102/23/P2021022300513.htmhttps://www.info.gov.hk/gia/general/202104/26/P2021042600252.htm

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? 

Existing and New Employees falling within the Compulsory Group 

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

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

No, all compulsory testings are conducted by the government or designated clinics at specific places.

New Employees falling outside the Compulsory Group 

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

Existing Employees falling outside the Compulsory Group 

Such an arrangement is unlikely to 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 the 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 tests obligatory may be considered as 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 the employer is planning to do so, it is advised that the employer should seek legal advice.

1.2 Can an employer voluntarily provide testing in the workplace? 

Yes, there are no general restrictions prohibiting employers from providing COVID-19 tests voluntarily to its employees in the workplace. 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. 

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?

Employees falling within the Compulsory Group 

In general, employees within the Compulsory Group are required to carry out tests every 14 days, but the timing requirements for some groups are different and they may change from time to time – both employer 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 Compulsory Group. 

Employees falling outside the Compulsory 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.

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

Employees falling within the Compulsory 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 cooperate in this process when required.

Employees falling outside the Compulsory Group 

There are no 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). 

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

New and Existing Employees falling within the Compulsory Group 

No, they cannot. Such testing will be mandatory for employment and failing to be tested could bring criminal liabilities. 

New Employees falling outside the Compulsory Group 

If employers make COVID-19 tests obligatory for employees, these employees cannot refuse to be tested if it is a condition under the newly entered employment contract.

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

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

Existing Employees falling outside the Compulsory Group 

The likely answer is yes, but this has not yet been tested with the Labour Tribunal. For detailed reasoning, please refer to the answer in Question 11 “Existing Employees falling outside the Compulsory Group”. 

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

New Employees 

Yes. Subject to the terms of each employment contract, there is no restriction under the laws and regulations, which prohibits an employer from doing so. Given that this is an arrangement to prevent the spread of infectious disease, it is unlikely to constitue 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 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 the employment contract only under a limited number of conditions. Failing to comply will entitle employees to make claims against the employer at the Labour Tribunal. 

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