The COVID-19 ‘Vaccine Pass’ and Proposed Amendments to the Hong Kong Employment Ordinance

The Hong Kong Government will be moving from its "vaccine bubble" strategy to a "vaccine pass". It announced on 8 February 2022 together with stricter restrictions in light of the recent 5^th wave of COVID-19 cases that it plans to amend the Employment Ordinance (Cap.57) (the "EO") to deal with employment issues arising from the measures.

Details of the proposed amendments are yet to be released so we will need to see what the precise changes are, but here is what we know so far.  

1. Moving from "Vaccine Bubble" to a "Vaccine Pass" (see here for the latest information on the vaccine pass arrangement)
   
   The "vaccine bubble" arrangement required employees of certain premises (like restaurants) to be vaccinated against COVID-19, or undergo regular tests if assessed by a doctor as medically unsuitable for vaccination. On 27 January 2022 the Chief Executive announced that given the "vaccine bubble" will be expanded to only permit those vaccinated to access the majority of premises used by the public, the measure will be renamed to a "vaccine pass". The "vaccine pass" will require those entering certain premises to be vaccinated against COVID-19 unless they fall within one of two exemptions, namely, (1) ineligible for the COVID-19 vaccine due to age, or (2) unsuitable for vaccination due to health reasons with relevant supporting evidence from a doctor. Anyone medically unsuitable for vaccination is required to obtain an exemption certificate issued by a doctor. The Department of Health has produced a template of the exemption certificate for use by doctors. The validity period of the exemption certificate is pre-set at 90 days with the longest being 180 days. The actual validity period will be decided by the doctor, having regard to clinical conditions. The Hospital Authority and private doctors will issue electronic versions of the exemption certificate, so it may be carried with the person electronically in the "LeaveHomeSafe" App.
   
   
2. Terminating Employment for Non-compliance with "Vaccine Pass" Rules 
   
   The Government will implement the "vaccine pass" on 24 February 2022. The Government proposes amending the EO to provide that employees terminated by reason of being unable to attend work because of failure to adhere to the vaccine pass rules will not be treated as having been unreasonably terminated. At this time it is contemplated that the vaccine pass will be required to access the majority of premises used by the public. As such, employees who may be impacted will be those required to access those public premises to perform their work. 
   
   
3. Terminating Employment for Absence Due to Compulsory Quarantine
   
   The Government may make a "restriction-testing declaration" covering certain restricted areas which requires persons within the area to stay in their premises and undergo compulsory testing. They can only leave after everyone has been tested and the Government announces that the declaration has expired. 
   
   The Government proposes to amend the EO to provide that termination of employment for absence due to any "restriction-testing declaration" or mandatory quarantine will be deemed as unreasonable termination. 
   
   We do not yet know the scope of this protection; such as whether it will also apply to those who have to undergo compulsory quarantine on return to Hong Kong after travel overseas; and whether it will give rise to unlawful termination. We will need to closely examine the scope of the protection when details are available. 
   
   
4. Sick Leave Medical Note for Compulsory Quarantine
   
   Depending on the circumstances, employees who are subject to mandatory quarantine or "restriction-testing declaration" that prevents them from working may not necessarily be paid statutory sickness allowance, because they may not be provided with the appropriate medical certificate to support their period of absence. Going forward, the Department of Health may issue a quarantine order or medical note to an employee subject to mandatory quarantine or "restriction-testing declaration". The Government proposes to amend the EO so that a quarantine order or medical note will be deemed an appropriate medical certificate entitling the employee to sickness allowance. 

The proposed amendments aim to minimise employment disputes as a result of the Government's measures to combat COVID-19. But we await details to see if they will achieve their intended aim. We will provide an update when details of the proposed amendments are available. 

See below for the relevant Government's press releases: 

• Government tightens social distancing measures in view of changes in epidemic situation
• Social distancing measures tightened
• Vaccine pass plan explained
• Government announces medical exemption arrangement under "vaccine pass"