Is it legal to ask staff to declare their vaccination status?

It's a contentious issue for employees

Is it legal to ask staff to declare their vaccination status?

Employees in Singapore may soon face a different set of rules based on their vaccination status. Under the government’s latest ‘vaccinate or regular test’ regime (VoRT), employers can implement differentiated workplace measures for vaccinated and unvaccinated staffers. The move, announced this week by the Ministry of Manpower (MOM), was made to further boost the country’s vaccine take up rate. As of August 25th, over 76% of the resident population have been fully inoculated. While the purpose of the latest workplace vaccine policy is clear, it may be tricky to implement and lead to claims of vaccination bias. HRD finds out how to navigate the prickly issue.

Read more: Will workplace bullying rise as a result of COVID-19 vaccines?

Can you ask staff to declare their vaccination status?

The short answer is yes, you can – if there’s a business purpose to it. A lawyer in Singapore explained MOM’s latest legal updates. “Employers may only ask staff for their vaccination status for business purposes, such as business continuity planning or whether the staff should be deployed to frontline or high risk-roles,” said Thomas Choo, partner at Clyde & Co Clasis Singapore. You can even require proof of vaccination if you’re under the voluntary VoRT regime, stated MOM.

From a practical perspective, Choo said that employers should clearly explain the reason for requesting an employee’s vaccination status. “In the event a staff member declines to do so, they will be treated as unvaccinated for the purposes of the vaccination-differentiated measures which the employer may establish in the organisation,” he told HRD. “Apart from the above, employers cannot legally force staff to disclose their vaccination status.”

Read more: Vaccinated individuals may enjoy 'relaxed' measures in Singapore

Can you force staff to get vaccinated?

The COVID-19 vaccine remains voluntary in Singapore. You can, however, find out why individuals are reluctant to get the jabs. MOM also urged employers to encourage eligible employees to get the shots. Despite the government’s official stance, companies may consider a mandatory policy if they’re in higher-risk environments. Also, firms in the following sectors will be required to implement the VoRT regime starting from October 1st:

  • Healthcare, eldercare, community care, and settings with children 12 years and under.
  • Those in mask-off settings and frontline work, such as hospitality, F&B, wellness and fitness studios, and personal care.
  • The public sector, including uniformed services.
  • Those in the service line, such as retail, supermarkets, taxi and private hire drivers, delivery personnel, and public transport staff.

Read more: SIA, Jetstar mandate vaccine for Singapore-based staff

Measure #1: Frequent testing of unvaccinated employees

Once you’ve determined whether employees are vaccinated, you may put in place different measures when managing staff. MOM suggested that companies consulted the unions first before implementing any measures. One safety measure that leaders can consider is frequent testing of unvaccinated employees. Following guidelines from the Ministry of Health (MOH), you can require selected staff to get tested twice a week.

Since the testing regimen is an added safety measure, you can get unvaccinated employees to cover the cost of test kits. “These expenses can be recovered either through salary deductions or by requiring these employees to pay the relevant service provider directly,” MOM stated. Of course, when considering salary cuts, you need to clearly discuss the issue with the affected employee.

Read more: High-risk staff require regular COVID testing

Measure #2: Pre-event testing before work or social events

Another special measure is to require unvaccinated staff to undergo pre-event testing before participating in workplace events. Besides pre-event testing, you can also implement reduced group sizes if unvaccinated employees planned to attend a session.

As of August 19th, companies can hold social events at work. It must be limited to 50 people and attendees must abide by prevailing safety measures such as safe distancing and mandatory mask wear. When eating or drinking, management must ensure they minimise the time that staff are unmasked.

Measure #3: Redeploy unvaccinated employees

While unvaccinated employees can continue to work in higher-risk environments with regular testing, employers can choose to redeploy them to a role with a lower risk of COVID-19 infection. The temporary roles must match the employee’s experience and skills. “If there are no existing redeployment policies within the organisation, the terms and conditions for redeployment should be mutually agreed between employers and employees,” stated MOM.

Read more: Returning to work? Companies reveal vaccine policies

How to avoid legal disputes and discrimination claims

In addition, employers can implement other differentiated workplace measures – with a catch. “In doing so, employers must be prepared to justify to employees and/or the government that such measures are reasonable and necessary for business operations and to better protect the health and safety of all employees,” cited MOM. This is especially if employees filed a dispute or made claims of discriminatory practices.

To mitigate any risk of discrimination when managing unvaccinated staffers, employment lawyer Thomas Choo shared some advice. Firstly, the employer should adopt a comprehensive internal vaccination policy that clarifies the differentiated measures. “This policy would need to explain the rationale of the policy and ensure that the measures undertaken are reasonable and necessary for the operations of the organisation,” Choo said.

Secondly, employers should ensure they maintained clear communications with staff. Leaders should:

  • Explain to staff that the policies and measures are aligned with MOM guidelines and are meant to ensure a safe workplace for all staff.
  • Urge all medically eligible employees to be vaccinated and facilitate the vaccination by giving some benefits, like paid time off or additional paid sick leave

“Try to understand why certain employees are not prepared to be vaccinated,” said Choo, implying that there may be religious or medical reasons for the reluctance. “And be empathetic to those in these situations.”

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