JTJB Law Bites Sep 21 – No Jab, No Job? What it means for employers

No Jab, No Job? What it means for employers

The Delta variant of the COVID-19 virus has driven a wave of employers across the globe to mandate vaccines for their employees. So far, several global brands based in the U.S. including Walmart, Google, Facebook and United Airlines have all issued mandates for their employees to be vaccinated in order to be granted access to the office or workplace.

Australia, Greece and England have also, to a certain extent, made vaccinations mandatory for employees working in high-risk sectors like healthcare and tourism.

But how does company policy co-relate national laws and regulations?

Across Southeast Asia, the law varies. We have provided a tabulated comparison on the status of the regulations in several regional jurisdictions below.
Taking a closer look at home, in July, the Singapore Ministry of Manpower (MOM), the National Trades Union Congress (NTUC) and the Singapore National Employers Federation (SNEF) jointly issued guidelines on COVID-19 vaccination in Singapore workplaces.

Vaccination not mandatory in Singapore, exceptions to higher risk settings

As it stands, the vaccination program generally remains a voluntary one. Employers are allowed to encourage COVID-19 vaccinations for their employees but are not allowed to mandate the same. Employers may also facilitate employees to get vaccinated, such as providing paid time off to get vaccinated or to recover from the side effects of the vaccination.

However, for employees who are exposed to higher risks of COVID-19 infection, such as those working in healthcare, hospitality, construction, marine and process sectors, employers may require COVID-19 vaccination as company policy or impose such requirement upfront during the recruitment process.
To assess whether your employment setting is considered a higher risk working environment, a useful reference point is whether or not your employee is required to undergo Rostered Routine Testing (RRT), the mandated Fast and Easy Testing (FET), or is in regular contact with known COVID-19 cases who are quarantined due to risk of the virus.

For employees who are working under higher risk settings but are unwilling to be vaccinated, employers may redeploy the employee to a lower risk environment. Where possible redeployment is concerned, employers will need to grapple with matters such as their employees’ existing terms of employment and whether these terms allow for redeployment, as well as the possibility of mutual terminating existing contracts and entering into fresh employment contracts in order to facilitate redeployment.

Privacy considerations

In Singapore, over 70% of the population has been vaccinated but mandating vaccinations for those who do not wish to be vaccinated is a tricky issue that potentially wades into arguments around discriminatory practice. Separately, there are also data privacy issues with regards to releasing medical information that can be considered sensitive data.

While the Personal Data Protection Commission (PDPC) has in the past issued decisions and advisories around the types of personal data that would be considered more sensitive in nature including identification numbers, financial data and information about medical conditions, vaccination records are not specified and should be processed with due care.

Employers may run into practical and legal issues in their attempts to ensure adherence or implementation due to difficulty in ascertaining their employees’ vaccination status, as employees are not legally obliged to report their vaccination status to their employers. This poses a practical problem for employers. If an employer is unable to accurately ascertain the vaccination status of its employees, it may find itself handicapped both in terms of formulating and enforcing any COVID-19 policy as well as identifying employees for possible redeployment.

There is no one size fits all solution that can be applied across the board and much is subject to change in the context of the fast-moving COVID-19 environment. Each employer will need to conduct its own internal evaluation to devise a suitable, bespoke solution to meet its needs and the needs of its employees.

If you have queries around vaccination measures for employees, please reach out to Mary-Anne Chua [maryanne@jtjb.com]

Southeast Asia legal and regulatory status on mandating vaccinations

Jurisdiction Key takeaways
Indonesia
  • For most regions in Indonesia, non-essential businesses are required to work from home.
  • For regions and particular sectors that are allowed to work from office (“WFO”), employers are allowed to mandate vaccinations for employees who WFO.
  • In the event that employees refuse to be vaccinated, there are currently no guidelines available to assist with addressing this issue

[Source: JTJB Associate Office Jakarta – Hadromi & Partners]

Malaysia
  • At present, there are no statutory provisions that allow employers to implement a mandatory vaccination prior to entering the workplace or commencing employment.

[Source: JTJB Associate Office Kuala Lumpur – Rahayu Partnership]

Thailand
  • Employers have no right mandate employees for vaccinations and any program of vaccination should be based on mutual consent. However, under Section 34 of the Communicable Diseases Act B.E. 2558 (2015) (the “CDA”), a communicable disease control officer in charge of overseeing an epidemic area may issue a written order instructing any person at risk of being infected with a disease to undergo vaccination at a prescribed date, time and place in order to prevent further community spread or transmission of the disease.
  • The vaccination records of employees are considered sensitive personal data. Therefore, the collection, processing or transfer of such data requires the employee’s express prior consent.
  • An employer may require its employees not to attend the workplace and may excuse them from working, provided that the employer pays the employees’ full salary or wages during such a period.
  • In April 2021, the Centre for the Administration of the Situation due to the Outbreak of the Communicable Disease Coronavirus 2019 (COVID-19) encouraged employers to set 14-day work from home policies to reduce rates of infection

[Source: JTJB International Lawyers Co Ltd – Bangkok]

For more details contact:

Mary-Anne Chua
Partner:
E | maryanne@jtjb.com
T | (65) 5324 0613