Making it Mandatory to be Vaccinated Against COVID-19: A Framework for Employers
As the world and employers alike want to see things go back to “normal” after over a year into the fight against COVID-19, many are hoping the vaccines will be a tool to help with this. Can employers require employees to be vaccinated to speed up the return to normalcy for their businesses? This article considers the legal position on this question that has been on employers’ minds.
A number of pharmaceutical companies have rolled out COVID-19 vaccinations and people are starting to see the light at the end of the tunnel in the global battle against the pandemic. This has brought about various questions with the central question being whether employers can require employees to be vaccinated against COVID-19, since employers see having a vaccinated workforce as a means to life going back to “normal”. This article seeks to provide some form of a framework to thinking about the issues related to this central question from a legal perspective.
The other ancillary issues that this article will address include the following:
- Whether the employer can require proof of vaccination.
- Whether an employer can terminate the employment of an employee who refuses to be vaccinated.
- What potential liabilities the employer may face if the employer required employees to be vaccinated and an employee gets an adverse reaction to the vaccination.
1. Whether Employers Can Require Employees to be Vaccinated Against COVID-19
a. Reasonable Direction
This question will need to be answered by first asking if requiring employees to be vaccinated is a lawful and reasonable direction by the employer.
This question stems from an implied duty of employees to obey the lawful and reasonable directions of their employer1Ravi Chandran, Employment Law in Singapore (LexisNexis, 6th Ed, 2019) at para 5.5. and is applicable to all directions from an employer.
Whether or not a direction is reasonable depends on the reasons and circumstances of directing the employees to take certain action.
As an example, most employers require that employees should dress according to a dress code. In a professional context, dressing to a particular standard would generally convey a sense of professionalism especially for employees who are client-facing. Given these reasons and circumstances, a dress code is widely accepted as lawful and reasonable in most professional contexts.
On the other hand, employees are not bound to obey directions that are not lawful or reasonable. If they are forced to do so by the employer, this could call into question another implied duty of an employment agreement, which is the duty of mutual trust and confidence that the parties to the employment agreement owe to each other. A duty of mutual trust and confidence requires that parties do not engage in conduct that is likely to undermine the trust and confidence needed for an employment relationship to continue.2Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd (2014) 4 SLR 357 at (24). See also Ravi Chandran, Employment Law in Singapore (LexisNexis, 6th Ed, 2019) at para 4.433.
The duty of trust and confidence is broad and could include among other things the failure to inquire into complaints of harassment,3Bracebridge Engineering Ltd v Darby (1990) IRLR 3. See also Sitt Tatt Berhad v Flora a/p Gnanapragasam (2006) 1 MLJ 497. the unjustified curtailment of functions,4Cheah Peng Hock v Luzhou Bio-Chem Technology (2013) 2 SLR 577. or the carrying on of a corrupt business without the knowledge of the employee which results in the employee having difficulty securing another job subsequently.5Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) (1997) 3 WLR 95. Given the broad nature of the duty, it is arguable that if an employer requires an employee to undertake any action that encroaches on their personal agency or if they take any action that crosses over into personal space without a strong justification to do so, this could potentially undermine the trust and confidence required for the employment relationship to continue.
b. Health and Safety
Employers should also consider the issue from a health and safety perspective. The Singapore Workplace Safety and Health Act6Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) requires employers to take necessary steps to ensure the health and safety of employees in the workplace, and in order to determine what steps are necessary to ensure the health and safety of employees, the employer should conduct a risk assessment. In the context of COVID-19, the risk assessment can be done by asking the following questions:
- How likely will COVID-19 be transmitted to employees in general? In Singapore given that the community cases are currently relatively low, this would make vaccination less of a necessary step to take to ensure health and safety of employees.
- How detrimental will contracting COVID-19 be to the health of an employee? The health risks can be severe if someone contracted COVID-19 since this could result in them being hospitalised. Accordingly, this could be a factor that supports the need for vaccination.
- Whether there is a heightened exposure to COVID-19 due to the nature of the employee’s work? This takes into consideration whether the employee’s role requires a high level of interaction with others, especially with others who could easily transmit COVID-19 to your employees, or if your employees, in the course of employment, could transmit COVID-19 to people who are more susceptible to getting sick if they contract COVID-19.
- Whether the vaccines are safe? This takes into consideration the information available on the vaccines including any approvals and guidance given by governmental agencies. In Singapore only two vaccines have been approved by the Health Sciences Authority for use at the time of writing but the registration is currently an interim registration because the long term side effects of the vaccine are not known yet. There is an additional vaccine in the pipeline for registration but this has not been granted yet. Even though the Health Sciences Authority has approved two vaccines, some employers may want to take a cautious approach because of the fact that the long term side effects are not yet known. However, it could still potentially be reasonable for an employer to direct employees to be vaccinated taking all factors into consideration.
The factors listed above are not exhaustive and there could be other factors that an employer may want to consider when conducting the risk assessment, but this depends on the employer’s specific circumstances.
c. Case Law
As far as we are aware, there is no pointed Singapore case law on the subject matter of requiring employees to be vaccinated for any type of virus or disease. However, the Australian case Nicole Marie Arnold v Goodstart Early Learning Limited  FWC 6083 (Australia)7Nicole Marie Arnold v Goodstart Early Learning Limited (2020) FWC 6083 (Australia) may provide some insight into common law reasoning as to when requiring employees to be vaccinated could be a reasonable and lawful direction from an employer.
Nicole Marie Arnold was an employee of Goodstart Early Learning and had responsibility for the care of children in her role.
Goodstart decided in 2020 that in addition to providing free influenza vaccinations for all employees, all employees must be vaccinated against influenza by a certain date under a direction issued to employees. Under this direction, Goodstart provided a process under which employees could reject getting vaccinated if they have a medical reason to do so. Nicole Arnold objected to get vaccinated but this was not for any medical reason. Goodstart decided to terminate Nicole Arnold’s employment stating that this is due to Nicole Arnold’s refusal to comply with a reasonable direction.
Nicole Arnold disagreed that Goodstart Early Learning could terminate her employment on this basis. Nicole Arnold then proceeded to file a claim in the Fair Work Commission stating that her dismissal was unfair.
Nicole Arnold filed her claim out of time, and sought an extension for a further period for filing. Accordingly, this case is largely about whether Nicole Arnold should be granted an extension to file her unfair dismissal claim, but to arrive at a conclusion on this matter, the Fair Work Commission considered several factors including whether Nicole Arnold’s claim had merit.
The Fair Work Commission said that Nicole Arnold’s arguments did have some merit but it is equally arguable that Goodstart’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or who are unable to be vaccinated for a valid health reason. So on the face of it, the policy is necessary to ensure that Goodstart met its duty of care with respect to the children under its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated for medical reasons.
The Fair Work Commission also said that it is equally arguable that Nicole Arnold had unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position which involves the provision of care to young children and infants.
Ultimately, the merits of the claim did not tip the balance in favour of Nicole Arnold being granted an extension to file her unfair dismissal claim. However, this case shows that it is possible that, given the nature of the employee’s work, a requirement to be vaccinated can potentially be a reasonable direction by the employer.
While it is possible that a requirement to be vaccinated is a reasonable direction by an employer, the logic in the Goodstart case would apply to narrow circumstances, and employers should still think about whether there are workable alternatives when coming to a conclusion as to whether a direction to employees to be vaccinated is reasonable or not. Whether or not there are alternatives to vaccination was not considered in the Goodstart case, but our view is that it would reduce the reasonableness of the direction to be vaccinated if there were alternatives to vaccination. Further, going back to the duty of mutual trust and confidence, most employers will also have to on this basis balance the fact that vaccination is an intrusive measure and if there are workable alternatives, these should be the first port of call for employers, until the Singapore government decides to make vaccination mandatory.
In Singapore, most office workers have been working from home for the most part of 2020 and working from home continues to be the default mode of working in 2021.8See Ministry of Manpower website on Requirements for Safe Management Measures at the Workplace <https://www.mom.gov.sg/covid-19/requirements-for-safe-management-measures> (accessed 12 March 2021) In this regard, working from home is an alternative to vaccination for office workers. For those that have the need to go back to the office or the workplace, wearing a mandatory mask has been an alternative to vaccination.
If an employer issues a written policy on mandatory vaccination, the policy should not set out any discriminatory language. This means that the employer should ensure that the policy provides exemptions from vaccination to employees who have a good reason to refuse to be vaccinated, including the groups of people that the Health Sciences Authority has said should not be vaccinated including pregnant women, those under the age of 16 and immunocompromised people. Employers may also want to consider making an exception for people to refuse vaccination on religious grounds.
The policy should also ideally not discuss any measures that could be seen as unreasonable and “punishing” those who are not vaccinated. For example, it would seem reasonable that employees who are not vaccinated will still need to take their temperature twice a day and wear PPE at all times if they are to be allowed into the office. However, cutting an employee’s bonus because he or she refuses to be vaccinated will more likely than not be seen as “punishing” the employee.
In Singapore, there are no overarching anti-discrimination laws so there is generally no avenue for an employee to bring a discrimination claim against the employer in Singapore. However, if there are no exemptions to a requirement for vaccination, this could call into question whether the direction from the employer is reasonable or not, and it may be inconsistent with the employer’s duty of mutual trust and confidence. Finally, if an employer was to terminate employment on the basis that the employee refused to get vaccinated and the employee felt that they were discriminated against, under the Guidelines on Wrongful Dismissal9Tripartite Guidelines on Wrongful Dismissal <https://www.mom.gov.sg/-/media/mom/documents/employment-practices/guidelines/tripartite-guidelines-on-wrongful-dismissal.pdf> (accessed 12 March 2021)., discrimination is a wrongful reason for dismissal. In this regard, if an employee can substantiate that employment was terminated because of the employer’s discriminatory policy, then this could pose a risk of a successful claim of wrongful dismissal by the employee.
2. Whether the Employer Can Require Proof of Vaccination
If an employer implements that requirement to be vaccinated, it would naturally want proof of vaccination from employees. Employers may require proof of vaccination from employees, but it ultimately cannot force them to provide it.
Employers should also consider the rules relating to personal data since the proof of vaccination will most likely contain the personal data of the employees.
One of the key principles relating to personal data is that consent will generally need to be obtained for the collection, use and disclosure of personal data.10Personal Data Protection Act 2012 (Act 26 of 2012), Section 13. There are exceptions to the consent rule but it is more prudent to rely on consent being given. Deemed consent is also consent for the purposes of the Personal Data Protection Act, and this means that if the employee without giving express consent, voluntarily provides the personal data to the employer. If an employer wishes to rely on deemed consent, an employer should again not force the employees to provide the proof of vaccination since deemed consent is only valid if the information has been voluntarily provided.
The proof of vaccination must be stored securely to prevent unauthorised access, collection, use, disclosure, copying, modification, disposal or similar risks.
Finally, an employer may only keep the proof of vaccination for as long as it serves the purpose that it has collected it for. On the conservative end, there is no real need to keep the proof of vaccination because the employee could simply show proof of vaccination to the human resources team and the human resources team can note in their records that the employee is permitted to enter the office in light of verification of the proof of vaccination. On the other hand, if the employer wanted to stretch it, it could argue that retention is needed until the risks of COVID-19 have subsided.
3. Whether an Employer Can Terminate the Employment of an Employee Who Refuses to be Vaccinated
Another question that is frequently being asked is whether the employer can terminate employment of an employee on the ground that they refused to be vaccinated.
In summary, this is not a ground for termination unless the employer can justify that it is a lawful and reasonable direction.
However, for completeness, an employer can terminate the employment of employees by giving the requisite notice or salary in lieu of notice and without providing a reason for the termination. Accordingly, if an employee refused to be vaccinated against the directions of an employer, the employer can technically terminate employment by giving the employee notice or salary in lieu of notice and not mention that the reason was because the employee refused to be vaccinated.
That being said, if an employer terminates employment in this manner very soon after the employee refuses to be vaccinated, this increases the practical risk of an employee bringing a wrongful dismissal claim, since employees can still bring a wrongful dismissal claim in the Employment Claims Tribunal even if requisite notice or salary in lieu of notice is given and no reasons for termination were provided.
4. What Potential Liabilities the Employer May Face if the Employer Required Employees to be Vaccinated and an Employee Gets an Adverse Reaction to the Vaccination
Theoretically, an employee could make a claim based in negligence against the employer if the employer requires that employees get vaccinated and an employee gets an adverse reaction to the vaccine. This is because employers have a duty of care towards their employees, meaning that an employer should take reasonable care for the safety of their employees.11Chandran a/l Subbiah v Dockers Marine Pte Ltd (2010) 1 SLR 786 at (15). This duty will likely cover not just safety at the physical workplace, but can extend to issues of safety flowing from an organisation’s mandatory vaccination policy.
The employee may not have an issue in establishing that there is a duty of care but it may be more difficult for them to show that there was breach of that duty of care. In order to establish a breach of the duty of care, we will need to examine what standard of care the employer should be held to. Several factors will be taken into account when determining this standard of care, including the likelihood and risks of harm, the benefit or utility in the employer’s conduct or activity, and the reliance on third parties to name a few.12Gary Chan, The Law of Torts in Singapore (Academy Publishing, 2nd Ed, 2015) at para 06.028 to 06.029 (for utility of the defendant’s conduct), para 06.030 (for likelihood and risks of harm), and para 06.031 (for reliance on third parties).
Since the Health Sciences Authority has conducted a study on the approved vaccine which showed low risks of an adverse reaction for the ordinary adult population, the reliance on this could lend itself to there being a lower standard of care required from the employer. Arguably also, the social benefit of the vaccination which contributes to a safer workplace for employees in general could further lend itself to there being a lower standard of care required from the employer.
b. Work Injury Compensation Act
Employees theoretically also have a claim under the Work Injury Compensation Act (WICA) which provides that employers will need to bear the costs for medical leave wages and medical expenses if an employee sustains a personal injury by accident in the course of employment. If the accident results in a permanent incapacity or death, the employer could also be liable to pay a lump sum payment.
It may not be instinctive to say that a personal injury due to a vaccination happened “by accident”, but based on a past case,13Pang Chew Kim v Wartsila Singapore Pte Ltd (2011) SGHC 194. WICA is interpreted broadly. In Pang Chew Kim v Wartsila Singapore Pte Ltd  SGHC 194, the employer was liable for amounts under WICA for an employee who had a heart attack on a work trip although a heart attack may not be considered as an “accident” in lay man terms. “Accident” for the purposes of WICA means an unfortunate event that happened unexpectedly and unintentionally, typically resulting in damage or injury. Given the broad interpretation of “accident”, the obligations under WICA could extend to personal injuries from the vaccination.
c. Financial Assistance
With all that said, the Singapore government has announced that it will be setting up a vaccine injury financial assistance programme to provide support for people who suffer a serious adverse effect from the vaccines administered in Singapore. If an employee is eligible under the programme for financial support, it could potentially mean that the employee may not be able to make a claim against his or her employer for their mandatory vaccination policy if it constitutes double recovery.
Given that the situation is novel, it is difficult to concretely state whether or not employers can require their employees to be vaccinated against COVID-19 especially because what is a “reasonable direction” by an employer can be open to interpretation. However, the framework in this article can be useful as a starting point in assessing if it is appropriate for employers, each with their specific circumstances, to require their employees to be vaccinated against COVID-19 until further developments or requirements on vaccinations are announced by the Singapore government.
|↑1||Ravi Chandran, Employment Law in Singapore (LexisNexis, 6th Ed, 2019) at para 5.5.|
|↑2||Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd (2014) 4 SLR 357 at (24). See also Ravi Chandran, Employment Law in Singapore (LexisNexis, 6th Ed, 2019) at para 4.433.|
|↑3||Bracebridge Engineering Ltd v Darby (1990) IRLR 3. See also Sitt Tatt Berhad v Flora a/p Gnanapragasam (2006) 1 MLJ 497.|
|↑4||Cheah Peng Hock v Luzhou Bio-Chem Technology (2013) 2 SLR 577.|
|↑5||Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) (1997) 3 WLR 95.|
|↑6||Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed)|
|↑7||Nicole Marie Arnold v Goodstart Early Learning Limited (2020) FWC 6083 (Australia)|
|↑8||See Ministry of Manpower website on Requirements for Safe Management Measures at the Workplace <https://www.mom.gov.sg/covid-19/requirements-for-safe-management-measures> (accessed 12 March 2021)|
|↑9||Tripartite Guidelines on Wrongful Dismissal <https://www.mom.gov.sg/-/media/mom/documents/employment-practices/guidelines/tripartite-guidelines-on-wrongful-dismissal.pdf> (accessed 12 March 2021).|
|↑10||Personal Data Protection Act 2012 (Act 26 of 2012), Section 13.|
|↑11||Chandran a/l Subbiah v Dockers Marine Pte Ltd (2010) 1 SLR 786 at (15).|
|↑12||Gary Chan, The Law of Torts in Singapore (Academy Publishing, 2nd Ed, 2015) at para 06.028 to 06.029 (for utility of the defendant’s conduct), para 06.030 (for likelihood and risks of harm), and para 06.031 (for reliance on third parties).|
|↑13||Pang Chew Kim v Wartsila Singapore Pte Ltd (2011) SGHC 194.|