A refusal of vaccination without reasonable grounds could lead to an infection that endangers the business, but it is unlawful for employers to make vaccinations compulsory. This article highlights the legal and practical issues in enforcing mandatory employee vaccination in Singapore and Thailand.
In July and August 2021, the Singapore’s Ministry of Manpower and its tripartite partners, the National Trades Union Congress and Singapore National Employers Federation, issued advisories relating to vaccination at the workplace. Under these advisories, employers should encourage medically eligible staff to get vaccinated, but should not terminate or threaten to terminate an employee just because he/she has declined vaccination.
The July advisory also identified three categories of employment settings where employers may impose a vaccination requirement at the point of recruitment, impose vaccination as a company policy, or make personnel adjustments to account for employees who decline vaccinations. These categories are: (1) where the work environment exposes employees to a higher risk of covid-19 exposure than in the general community; (2)where safe management measures may not be effective or practicable; and (3) where employees are engaged in activities that require masks to be removed frequently.
The August advisory has built on this, by encouraging employers to adopt a “Vaccinate or Regular Test” regime for all employees and by highlighting some of the vaccinated-differentiated workplace measures which employers may consider implementing at the workplace. One ancillary issue is how an employer can reliably distinguish the vaccinated from the unvaccinated and the advisory addresses this by stating that employers may ask employees to declare or provide proof of their vaccination status. Employees who refuse to provide proof of vaccination can be deemed unvaccinated and may be subject to restrictions and testing at the workplace. Unvaccinated employees may also have to bear the costs of testing.
In considering the implementation of these advisories, an employer will need to consider existing terms of employment and the extent to which these terms allow the implementation of intended measures. As the situation is quite fluid, employers will also need to look ahead, and to prepare for the possibility of further adjustments.
The information in this article is accurate as of the date of submission, and employers should note that new regulations may be introduced, or existing regulations may be amended, to account for changing local circumstances.
The covid-19 situation in Thailand is aggressively intensifying. Understandably, employers desire to vaccinate their employees to prevent infection and safeguard the employers’ businesses. However, it is an open question as to whether such a mandate is legally enforceable. Arguably, demanding employees to be vaccinated by force would be a criminal offence and a breach of Thailand’s constitution. Nonetheless, such a mandate would be enforceable and considered a fair order if the nature of the employer’s business could be endangered due to covid-19 infection.
A parallel may be drawn to a Supreme Court precedent that ruled an employment termination, following the employee’s refusal to undergo a drug test after being found to have illegally abused drugs, was enforceable and legally fair. The Thai government’s agenda also prioritises vaccinations to maximise immunity and lead to economic improvement.
There is presently no court precedent on whether the termination of an employee who refuses to comply with the employer’s mandate to get vaccinated would be considered fair or unfair termination. However, such termination would be considered a fair termination if the mandate is also considered a fair order of the employer, unless the employee has reasonable grounds to reject the vaccination due to illness, or provides other reasonably supportable grounds of rejection. For example, a Supreme Court precedent previously ruled that terminated employees had seriously violated the employer’s order by smoking in a prohibited area, which could have caused a fire and damaged the employer’s business.
In general, an employment termination would trigger the terminated employee’s right to receive severance pay based on an interrupted working period. However, depending on the nature of the employer’s business activity, a refusal to get vaccinated could be considered a serious violation of the employer’s order. No written warning is required as stipulated under the Labour Protection Act. In this case, the employer shall not be required to pay the severance pay to the employee.
JOSEPH TAN JUDE BENNY
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