On 12 April, the Hong Kong government announced new conditions that may be imposed on restaurants to ensure that their employees are vaccinated if they would like to benefit from additional operating hours. Chief Executive Carrie Lam said that restaurants and bars must ensure that all staff have had at least one dose of a COVID-19 vaccine if they would like to operate until midnight with diners seated in tables of six (which is an increase from the current 22:00 closure and four people per table rules). The restrictions will be further relaxed for restaurants with employees who have had two shots of the vaccine.
So, what does this mean for employers? It’s understandable that employers will want to take advantage of the opportunity to have more diners at their restaurants with extended hours, however they must also take into account the legal considerations of mandating their employees to be vaccinated.
Under the Occupational Health and Safety Ordinance, employers are required to ensure the safety and health at work of their employees, as far as reasonably practicable. Employees are also required to follow any lawful and reasonable instruction by their employer. A failure to comply with these directions would be considered as a breach of contract and may result in disciplinary actions against the employee.
Given that the employer would be directing the employee to be vaccinated on the basis of the Government’s incentive for restaurants to extend their opening hours, this could be considered a reasonable direction from an employer.
If an employee refuses or objects to being vaccinated, and an employer dismisses them on this basis, the employer could face legal claims such as dismissal without a valid reason or an indirect discrimination under the anti-Discrimination Ordinances. Indirect discrimination occurs where a requirement or condition is imposed on all employees equally, but it has a disproportionate impact on a group of persons who share a protected attribute.