Vaccination in Hong Kong: Invalid Medical Exemption Certificates

Introduction

Following a high-profile tussle in the courts, the Hong Kong government recently amended the law in order to declare invalid Covid-19 medical exemption certificates improperly issued by seven registered medical practitioners. In light of this episode, employers may wish to check whether they have received any doubtful exemption certificates (such as those issued by the relevant practitioners) and, if necessary, consult with employees as to whether new medical exemption certificates will be produced. Should a non-vaccinated employee fail to obtain a new medical exemption certificate and no other exemption applies, the employer would be entitled to dismiss the employee.

The context to the above is provided by amendments made earlier this year to the Hong Kong Employment Ordinance in connection with the Covid-19 pandemic, including in relation to the right of dismissal and entitlement to sickness leave and pay. Those amendments made clear the following:

1. An employee may be legally dismissed for failure to provide proof of Covid-19 vaccination within 56 days after the employer’s “legitimate vaccination request”¹, unless any of the following applies:

   • the employee is pregnant or breastfeeding; has a medical exemption certificate showing unsuitability to be vaccinated; holds proof of discharge issued by the government certifying that they contracted Covid-19 in the six months prior to the employer’s legitimate request; or is exempted under the government’s vaccine pass scheme; or

   • any of the (other, pre-existing) statutory prohibitions on dismissal apply; for example, the person is on statutory maternity leave or statutory paid sickness leave, or has had an accident at work and the claim for that is still outstanding.

2. An employee cannot, on the other hand, be dismissed due to absence from work caused by any “statutory restriction on movement”, (i.e. under a compulsory testing notice; or due to compulsory quarantine or isolation because of Covid-19 infection or being a “close contact”; or any government ordered lockdown of a specified area).

   If an employee has to be absent from work to comply with a “statutory restriction on movement”, this will be regarded as a statutory sickness day. Assuming the other formalities (described in paragraph 3 below) are met, the employer will have to pay sickness allowance to eligible employees.

Employers should note the following

1. As noted at the outset, employers should check whether any medical exemptions certificates previously received appear improper, and ascertain whether affected employees (if any) will provide new exemption certificates, or receive the Covid-19 vaccination.

2. If dismissed for non-vaccination, an employee cannot use this as a ground to claim that the dismissal was not for a “valid reason” for the purposes of bringing a claim under Part VIA of the Employment Ordinance.

   Even where dismissal for non-vaccination is a “valid reason” and therefore not unlawful for the purposes of the Employment Ordinance, an employer must be alive to the fact that termination of employment in certain circumstances could potentially contravene an anti-discrimination ordinance, e.g. dismissal of an ill and unvaccinated employee who has exhausted statutory paid sickness leave (but who is not medically exempt from vaccination) could be disability discrimination.

3. Many employers will have existing arrangements for remote working so that employees can continue to work whilst complying with a “statutory restriction on movement”. If, however, an employee cannot do this and is absent, then:

   • the employee is protected from dismissal; and

   • even assuming the employee is not sick, this will be regarded as a statutory sickness day and an employer must pay sickness allowance to an employee who fulfills the following conditions: (1) provides an official certificate (this can be a medical certificate or the order issued by the government); (2) is absent from work for at least four consecutive calendar days; (3) is continuously employed and has accumulated a sufficient number of paid sickness days; and (4) has not become subject to the government order due to their own serious and wilful misconduct.

Conclusion

Despite the high vaccination rate in Hong Kong, the issue of vaccination continues to be topical, as demonstrated by the recent high-profile focus on invalid medical exemption certificates. For many employers, it remains a tricky issue, particularly for those with small pockets of unvaccinated staff. The Employment Ordinance amendments earlier this year were a positive step in clarifying what Hong Kong employers can do to address this. We anticipate that they will have emboldened employers to move towards dismissal and that, by now, some employers will have already taken this step.

^{1 This must satisfy four statutory requirements: (1) be in writing to all employees who undertake the same or similar type of work; (2) provide the employee with at least 56 days to present proof of Covid-19 vaccination; (3) the employer, when making the request, must reasonably believe that others in the workplace will be exposed to the risk of infection if an employee contracts Covid-19; and (4) it must not be made to those who are exempt from vaccination.}