Hong Kong offers a contrast to most other APAC countries with a COVID-19 policy involving loosened restrictions for settings in which all individuals are vaccinated, raising questions over whether employers can require their employees to become vaccinated.
Lawful and reasonable: Under Hong Kong labor and employment law, an employee must comply with any “lawful and reasonable” direction of their employer. Thus, whether an employer can require its employees to get vaccinated hinges on whether doing so is “lawful and reasonable,”
as first reported by Mayer Brown.
There is nothing inherently unlawful about vaccination, so the primary inquiry is whether it is reasonable for an employer to mandate vaccination – a question that is largely dependent on the circumstances for each employer and their employees. In the service industry, for example, where close contact with customers is an everyday part of the job, and therefore the continuation of an employer’s business is largely dependent on employees being vaccinated, a mandatory vaccine policy is likely to be considered reasonable and therefore lawful under Hong Kong labor and employment law. On the other hand, where a company can operate remotely without losing profitability, requiring vaccination is likely to be unreasonable under Hong Kong law.
Questions on whether an employer can require its employees to get vaccinated are particularly relevant now that Hong Kong has announced a new COVID-19 policy involving “vaccine bubbles.” The policy will allow a relaxation of current social gathering restrictions in circumstances where all participants have been vaccinated, including permitting bars and restaurants to operate past well past the currently imposed curfew. This new policy gives hospitality businesses a major incentive to get their staff vaccinated, implicating the above questions over the legality of mandating vaccination. Employers in Hong Kong should evaluate whether their businesses consistently require in person interaction – as mentioned above, employers in the service industry likely can lawfully require their staff get vaccinated.
Meanwhile, Hong Kong has extended the amount of statutorily maternity leave from 10 weeks to 14 weeks, with retroactive effect from December 11, 2020. The Hong Kong government will reimburse employers for the additional three weeks, as long as the leave was taken after December 11, 2020 and was not covered through other government funding.
