It is an implied term in every employment contract that an employee is obliged to comply with a lawful and reasonable order from their employer. A failure by an employee to comply with a lawful and reasonable order which is within the scope of the employee’s employment will be a serious breach of contract.
So, is a direction by a Hong Kong employer that all employees must be vaccinated against COVID-19 a “lawful and reasonable direction”?
Such a direction will be lawful if it falls within the scope of the contract of employment and involves no illegality (and this is relatively easy to identify). However, whether it is reasonable is a question of fact and balance, taking into consideration the terms and circumstances of the employment relationship.
There is no law which prohibits an employer from requiring an employee to be vaccinated. As such a direction from an employer requiring an employee to be vaccinated is not illegal.
However, if an employer is only targeting part of its workforce to be vaccinated (e.g., only those who are client facing) then it should take care that it is not inadvertently creating risk under any of Hong Kong’s anti-discrimination ordinances.
Vaccination involves the introduction of foreign bodies into the human body. It is, therefore, invasive. In addition, there is considerable chatter on social media platforms and the like about both the efficacy and the safety of such vaccines (the vast majority of such conversations appear to be emotional, rather than scientific). The practical effect of this is that a direction to employees to be vaccinated is more likely to result in a strong emotional response than, say, a direction to be tested.
In the employees’ minds, therefore, the threshold for “reasonableness” is going to be high.
From a legal perspective, a court would likely consider both the macro environment (e.g., what is the benefit to society generally of vaccinations) and the micro environment (e.g., what are the specific circumstances of the work context and of the employee in question).
At the macro level the following points are relevant (and can be contrasted with other jurisdictions and regions):
On the micro level, a court would consider:
So, for example, if international travel corridors were to open which were only available to passengers who had been vaccinated then it may be reasonable to require all employees who have close contact with such passengers to be vaccinated also in order to create an additional firebreak around such travellers and to give passengers comfort that they were not putting themselves at risk.
In contrast, requiring employees who are working remotely or who have very limited close contact with other staff or customers to get vaccinated is materially less likely to be considered reasonable.
Unfortunately there is no black or white answer or a silver bullet. Each employer should consider its own particular circumstances and risk profile. That said, in our view it will only be in very few occasions that an employer could mandate vaccinations for all of its employees. However, it is clearly reasonable for employers to express a view that encourages vaccinations. We are even aware of certain employers who have been paying vaccination bonuses to employees or giving employees who get vaccinated extra time off work (although care does need to be taken that this does not disproportionately favour healthy over disabled employees, or men over women).