Mandatory COVID-19 Vaccination – What are the Potential Liabilities of Hong Kong Employers under the Employees' Compensation Ordinance and Common Law?

Following the Hong Kong government's implementation of a territory-wide free COVID-19 Vaccination Programme for all Hong Kong residents, some employers may need to decide whether they should make it compulsory for their employees to receive COVID-19 vaccination to protect their workforce and customers during the pandemic. One of the concerns is whether the employer faces any legal liability under the Employees' Compensation Ordinance Cap. 282 (ECO) and at common law if the vaccination results in adverse reactions, serious illnesses or death of the employee. 

Liability under the ECO

Pursuant to Section 5 of the ECO, an employee is entitled to claim compensation against the employer for work injury if they can prove that they suffered "personal injury by accident arising out of and in the course of the employment". 

For reasons set out below, an employer is potentially liable to pay work injury claims under the ECO where an employer has mandated vaccinations to employees and they resulted in serious adverse reactions.

An accident?

An "accident" means any unintended and unexpected occurrence which produces injury or loss. Apart from "external accident" there may be "internal accident" as well, meaning there is a physiological change brought about by an undesigned untoward event. 

For example, a ruptured aneurysm suffered by a worker while turning a wheel or a screw was accepted as an accident by a court, even though it is difficult to distinguish if it was an "accident" or an "injury", as the rupture was an accident and an injury at the same time. Although the act of turning the wheel was not in itself an accident/something unexpected, the injury which the worker sustained while carrying out this task was held to fall within the ordinary meaning of the word "accident".

Therefore, there is a reasonable chance that a vaccination (an event which is identifiable as a particular occurrence) which unexpectedly produced a severe adverse reaction (which is a physiological change invisible from outside the body) can constitute "an undesigned untoward event" and hence fall within the meaning of the word "accident". 

"Injury by accident"/"arising out of the employment"- causation issue

In determining whether there was an "injury by accident" or whether the accident arises out of the employment within the meaning of section 5 of the ECO, the burden of proving injury or death by such untoward and unexpected event is on the employee. It must be proved on a balance of probabilities (i.e., more than 50% chance) that there was a distinct event (the accident) which produced the injury.

In the context of post-vaccination illnesses, it would not be a light burden on the employee because it requires evidence from experts, such as the assessment result of the Expert Committee on Clinical Events Assessment Following COVID-19 Immunisation (Expert Committee), as well as scientific investigation data, to determine this issue. If the Expert Committee is of the view that the serious adverse reaction and the vaccination do not have direct causal association, it would be more difficult for the employee to prove the causal link between the accident and the injury. 

Useful guidance can also be found in the New Zealand High Court case of Groves v AMP Fire & General Insurance Co (NZ) Ltd [1990] 2 NZLR 408. It was held in that case that death by an unexpected and rare adverse reaction to a properly administered anaesthetic does come under “death by accident”.

In the course of the employment?

Apart from proving that the disease was an injury by accident, an employee needs to prove that the accident happened "in the course of his employment".

According to the case law, the phrase "in the course of his employment" under the ECO means in the course of the work which the employee is employed to do and what is incidental to it. In the context where the employer mandates the vaccination of its employees, it will likely be regarded as a requirement for work and hence incidental to the employment. Further, where mandatory vaccination of employees benefits the employer (e.g., a domestic helper's receipt of a vaccine will make it safer for them to interact with the employer and family members in the home setting, longer restaurant operation hours as a result of restaurant workers receiving vaccines pursuant to the new "vaccine bubble" arrangements), this will also be a strong factor in the employee's favour when considering whether the mandatory vaccination is incidental to the employment. 

Would mere fatigue/unwell feeling constitute an "injury"?

There are no directly relevant Hong Kong case authorities on this issue. We refer to an Australian High Court case, Military Rehabilitation and Compensation Commission v. May [2016] HCA 19 (date: 11 May 2016), which was a work injury claim for post-vaccination adverse reaction. In this case, an employee, Mr. May, was required to have a series of vaccinations during his employment with his employer. He alleged that he suffered from "low immunity, fatigue, illnesses, dizziness" as a result of the vaccinations. He claimed workers compensation for his adverse reactions. The High Court of Australia allowed the employer's appeal and dismissed the employee's claim on the ground that Mr. May failed to establish that he had an "injury", as a mere assertion of unwell feelings without more is insufficient to fall within the definition of "injury". The High Court clarified the meaning of the word "injury" – if an employee suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an "injury". It is the physiological change that remains central. 

While the above Australian case authority is not binding on Hong Kong courts, this may serve as a reference when the Hong Kong courts determine this question. Incidentally, reference can also be made to Section 20C of the Law Amendment and Reform (Consolidation) Ordinance Cap. 23 regarding personal injury claims for loss of society or services, which defines "injury" as including "any disease and any impairment of a person’s physical or mental condition". In summary, in our opinion adverse reactions which amount to a diagnosable condition and an impairment of a person's physical or mental condition are more likely to come within the meaning of "injury" under section 5 of the ECO. Mere fatigue or feeling unwell without a formal diagnosis, on the other hand, are unlikely to qualify as "injury" under the ECO. 

In summary, in order to meet the basic criteria for claiming employee's compensation under the ECO, an employee needs to prove that 

1. the vaccination had unexpectedly caused an injury within the meaning of the ECO;
2. that the vaccine was taken in the course of his/her employment; and
3. the Expert Committee/expert of the relevant field opines that the adverse reaction is related to the vaccine after assessment.

Liability under the Common Law

Under common law, employers owe a duty to take reasonable care of their employees' safety. Pursuant to Section 6 of the Occupation Safety and Health Ordinance (Cap. 509), employers must, so far as reasonably practicable, ensure the safety and health of their employees at work.

One of the legal considerations for employers before adopting a vaccination policy is whether they would be held liable for negligence for mandating their employees to receive vaccination if the employees suffered from vaccination injuries as a result.

In determining this, the issue is whether it is "reasonable" for the employer to mandate the employee to receive the vaccination, and it depends on the facts of each case. Some of the relevant factors are:

1. Nature of the employer's business/Nature of the employee's job duties – whether the workplace is more prone to COVID-19 outbreaks/the job duties involve a higher risk of contracting COVID-19:
   • Employers in "higher risk sectors", such as the catering sector/elderly homes/healthcare sector, may have stronger business justification (than a business which involves lower risk of contracting COVID-19) in requiring their employees to receive the vaccine, subject to the employees' medical suitability to receive the vaccine.
   • For example, based on the latest government policy in Hong Kong, bars and pubs can only reopen if the person responsible for the premises ensures that all staff and customers have received the first dose of the COVID-19 vaccine. This would provide a strong justification for bars and pub owners to mandate staff to get vaccinated, subject to the employees' medical suitability.
2. Whether the employee in question belongs to the group of people who should not receive the vaccination.
   • If the employee is not suitable to receive vaccination for medical reasons (e.g., those who obtained a doctor's certificate indicating that vaccination is not suitable based on their health conditions), the employer is expected to be considerate and show understanding to such employee's situation and make flexible arrangements (e.g., in line with the current government policies, staff of pubs and bars who are unfit to receive vaccinations because of health reasons may seek exemption, subject to conditions including the completion of a government declaration form and the presentation of a medical certificate).
   • If a Hong Kong employer mandates staff to be vaccinated, it is suggested that employees should be reminded to refer to the official information about the vaccination programme from the Hong Kong government's website www.covidvaccine.gov.hk/), including information such as "Should one be given COVID-19 vaccination if s/he belongs to a certain group or has a particular condition" as well as the "Concise Guide" to the particular vaccine before the employees receive the vaccines. They should also be reminded that if in doubt, they should consult their own doctors to advise on their suitability to receive the vaccines.

Given the global push by governments and health organisations for individuals to be vaccinated it is our view that no employer would be considered to be negligent if it were to mandate its employees to receive vaccinations (excluding those who may have a medical reason or other special circumstances for not being vaccinated). Of course, whether an employer has the contractual power to so mandate is a separate matter and is covered in our Legal Update at https://www.mayerbrown.com/en/perspectives-events/publications/2021/02/hong-kongs-covid-vaccination-programme-considerations-for-employers. 

COVID-19 Vaccine Indemnity Fund

Finally, the Hong Kong government has set up a COVID-19 vaccine indemnity fund to provide compensation of up to HK$3 million to people who may suffer serious side effects following vaccination. As such the risk of any employee looking to bring a claim against his or her employer is further reduced.