Can employers mandate vaccination in workplaces?

COVID-19 vaccination is abuzz the world over, with some countries mandating requirements in various forms. New Zealand, for example, issued the Covid-19 Public Health Response (Vaccinations) Order 2021 to prohibit employers from allowing certain employees to work at certain places (for example quarantine facilities, airports, ports, and so on) unless they are vaccinated. Effectively, those who refuse or are unable to do so will be redeployed. This approach is not without its challenges.

In early May, a few days after the deadline, nine customs workers in New Zealand were sacked because ostensibly, alternative positions could not be found for them. There have been allegations of a lack of consultation amid the sacking. Italy has a similar policy for healthcare workers with those who refuse vaccination either being re-assigned to non-patient facing roles or, if not possible, suspension without pay. Such a drastic action has led to allegations of unconstitutional practice on the part of employers.

In Hong Kong, a similar approach was stymied before it even took off. A controversial proposal to require all foreign domestic workers to be quarantined before their contracts can be renewed drew complaints of discrimination and diplomatic backlash, forcing the government there to reconsider this policy, which was ostensibly to curb the emergence of mutant strains.

Singapore's Covid-19 vaccination programme was rolled out in late December 2020. A voluntary programme, its target is for as many eligible residents to be vaccinated as possible. Vaccination was initially made available to vulnerable segments of the population and workers in essential industries, from healthcare, maritime and aviation sectors and later on those in other critical functions. The aim of the programme is to protect Singaporeans as well as to protect businesses and jobs through the re-opening of the country.

The burning question is whether employers are legally justified to mandate vaccination, particularly where their employees are at higher risk of exposure. This is not crystal clear under current law, although our views tilt towards 'it depends'. To explain, the Workplace Safety and Health Act (WSHA) requires an employer to take such "measures as are necessary to ensure the safety and health of his employees at work", so far as these are reasonably practicable. In light of the voluntary nature of our national vaccination programme, it is doubtful that employers can take a different tack by imposing mandatory vaccination as a necessary measure to ensure the safety and health of their employees. Yet, it cannot be that every workplace is to be treated identically.

Clearly there are specific workplaces with unique work conditions that justify mandatory vaccination as a "necessary" measure. Depending on the nature of the industry, the work patterns and the risks that employees are exposed to, this is potentially justifiable. It is finding that right balance and managing the 'collective employee' over the 'individual employee', when ensuring "the safety and health of his employees at work" to meet the requirements of the WSHA.

Will and should Singapore go down the road of mandating? Legislation in some form of the abovementioned manner will provide some clarity but will introduce other legal and practical issues as can be seen in the experience of other countries.

For example, if employees refuse to have themselves vaccinated or cannot be inoculated for certain reasons, employers' hands may be tied if there are no other roles available. Will legislation expressly permit employers to exit them, perhaps mandating an assistance payment? Or could it be deemed a redundancy? Yet, in a pandemic-stricken world, these latter options will add to the financial burden already felt by many employers. Or, should the law go so far as to indemnify employers from liability for enforcing any no-vaccination-no-work rule? But this ostensibly means no compensation to the employee, which raises questions of fairness.

On the other hand, there is the group of employees who comply and submit themselves for vaccination. In the rare case that any employee falls seriously ill following vaccination, in what cases must the employer take on any liability beyond the coverage of the Vaccine Injury Financial Assistance Programme, or is the employer completely immune simply because it was operating within the framework? But what if the employer was able to redeploy the worker but chose not to? There are a whole host of considerations to be addressed.

All said, we do not advocate legislation. There are softer means available that employers can tap to encourage voluntary vaccination. It follows that employers must design such schemes carefully. For example, they must be careful about implementing employment practices that can be perceived as disincentives for not vaccinating, as these potentially create discrimination issues. As a corollary, employers must be prudent about implementing incentives, to avoid allegations of overzealous persuasion and consequentially potential liabilities under tort law.

A separate issue is if an employer potentially decides to look forward and shape its workforce into a vaccinated one over the passage of time by judicious hiring. Caution is required here as there are very real issues of whether such hiring practices will comply with fair hiring guidelines. There are also privacy concerns that employers must manage.

All said, there are many uncertainties in the current state, and yet, legislation and/or industry guidance is not necessarily the solution to close the gaps given the relentless nature of this pandemic, although it can aid employers in finding the right balance. On this, the Manpower Minister has indicated that tripartite partners will, at the appropriate time, issue guidance on acceptable employer policies on vaccinating their workforce. This has not yet been released as at the date of writing.

• The writers are partners at Rajah & Tann Singapore LLP. Phang Hwee Guang, senior associate, also contributed to the piece. The opinions expressed are the writers' and do not necessarily represent the views of Rajah & Tann Singapore LLP.

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