Can an employer require compulsory COVID-19 vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
The COVID-19 vaccine will progressively be made available to all Singapore citizens and long-term residents. The Singapore Government’s current stance on vaccination is that it is recommended, but voluntary. Individuals who choose not to be vaccinated, however, may need to undergo more frequent testing, in addition to other transmission control measures such as quarantine upon returning from travels.
Given the voluntary nature of the vaccination, it would generally not be reasonable for employers to compulsorily require its employees to take the vaccination. Instead, employers may wish to strongly encourage employees to take the vaccination; some employers have reportedly said that they will be providing incentives to employees who take the vaccination in a bid to encourage employees to take the vaccine.
Ultimately, whether an employer can require compulsory COVID-19 vaccination will depend on whether such a requirement is reasonable and lawful. Employers should consider the position taken by the government on the vaccine, the employee’s health and medical history, as well as the employee’s role and responsibilities.
For instance, if the government were to make vaccines compulsory (or compulsory for a certain group of persons, e.g., those in healthcare), and provided there is nothing in the employee’s health and medical history which would make that employee unsuitable for vaccination, the case for compulsory vaccination may be more arguable, especially if the employee is in a high-risk role.
On this note, the Ministry of Health and the Ministry of Manpower are currently reviewing the issue of vaccination of workers in specific workplace settings such as researchers or laboratory staff working directly on the COVID-19 virus or those who face very high risk of exposure to infected individuals, and the Ministries will provide advice on this later.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
As the COVID-19 vaccination is voluntary in Singapore, employees can refuse to be vaccinated, unless the employer has a lawful and reasonable reason to require such vaccination (refer to our response to Question 1 above).
Singapore’s Minister of Health, Minister Gan Kim Yong, has stated in his Ministerial Statement at Parliament on Jan 4, 2021 that for employees who decline to take the vaccination, it will not be necessary to review their job scope or redeploy them, unless there is a resurgence of cases. Nevertheless, all workers must continue to take necessary precautions such as mask-wearing and ensuring physical spacing of at least one meter apart at the workplace to reduce the risk of transmission.
Employers are reminded that they remain under an obligation to have a safe workplace under the prevailing Workplace Safety and Health legislation.
Further, it is required for employers to adopt safe management measures to minimize the risk of COVID-19 transmission at workplaces. These measures include working from home as the default mode of working (for at least half of an employee’s working time), having no more than half of employees who are able to work from home at the workplace at any point in time, staggering start times for the work day and allowing flexible working hours, and implementing shift or split team arrangements with no interactions between employees in different shifts or teams. Socializing between employees should also be discouraged.
Over and above the safe management measures which have been regulated, in appropriate cases, it may be useful for employers to adopt additional measures as part of an enhanced risk management framework particularly in the event of a resurgence in local cases, if the refusal to undergo COVID-19 vaccination may cause danger to co-workers. This could include having vulnerable and/or unvaccinated workers work from home or to look for alternative work for such employees.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
If the employer has a reasonable and lawful basis to compel the employee to undergo the vaccination and the employee refuses to comply, this may be cause for summary termination if the refusal can be construed as misconduct. Prior to any such termination, there should be a due inquiry conducted. The employee’s reasons for refusing to take the vaccine, and the consequences of such refusal, should be considered as part of this due inquiry.
That said, under Singapore law, both employers and employees have a right to contractually terminate the employment with notice and dismissals with notice are presumed not to be wrongful. If, however, an employer chooses to terminate the employment relationship in this manner instead, it should bear in mind that an employee who is dissatisfied with the termination may still challenge the termination. In such event, to succeed, the employee must substantiate a wrongful reason for the dismissal. Wrongful reasons in this respect could be discrimination, deprivation of benefit, or to punish an employee for exercising his employment right. For instance, if the employee manages to show that there is no basis to compel the vaccinations and that the employer is discriminating against employees who refuse the vaccinations, such termination could nonetheless be found to be wrongful.
Jenny Tsin, WongPartnership