You might have heard about the “no jab no job” slogan spreading the news during the past weekend. That's because businesses in the UK are reportedly already drawing up “no jab, no job” contracts for employees after the vaccines minister Nadhim Zahawi said it was “up to businesses what they do”. Meaning that, even if the vaccine is not mandatory by law, private companies could impose the vaccine to new employees.
As reported by BBC, according to David Samuels, legal director at law firm Lewis Silkin, there is nothing legally to stop a business from placing a “no jab, no job” clause in contracts for new hires. However, he cautioned that employers would need to analyse each job role and evaluate health and safety risks before introducing such a clause.
So what about China?
China Food & Drug Administration has given market approval to the country's first COVID-19 vaccine Sinopharm. The conglomerate says its vaccine has a 79% efficacy rate — close to the 80% needed to extinguish the epidemic.
The vaccination has now been granted for some key groups, including inspection workers at customs, medical workers and government workers. Even if highly suggested, the vaccination is not mandatory yet.
Considering the current situation in China, the following questions have been frequently asked by companies, which we would like to share for the readers' reference.
i. Can an employer require an employee to wear a mask during working hours if he/she is showing symptoms which may also be associated to those of Covid-19?
In general, except where the use of a sanitary mask (or other personal protective equipment such as glasses or gloves) is required for the performance of specific duties by the employee, an employer may not impose on an employee an obligation to wear a mask at work.
However, the response to this question may vary in circumstances where public health issues are involved. Such circumstances may also vary from place to place, depending on the level of seriousness of the health issues involved.
In Shanghai, where the outbreak of the Covid-19 was successfully kept under control, authorities promulgated on 27 October 2020 the Regulations of Shanghai Municipality on Emergency Management of Public Health (the “Regulations”), which became effective on 1 November 2020. The Regulations set forth that “people in public places are required to wear masks during epidemics of respiratory infectious diseases”. Although the concept of “public places” (in Chinese公共场所) is not defined in the Regulations, according to Administrative Regulations on Sanitation of Public Places (issued on 1 April 1987 and last amended on 23 April 2019) public places are defined to include:
- hotels, restaurants, inns, rest houses, coffee bars, pubs, tea houses;
- public bathrooms, barbershops, beauty salons;
- theaters, video rooms, entertainment halls, ballrooms, music halls;
- stadiums, swimming pools, parks;
- exhibition halls, museums, galleries, libraries;
- shopping malls (stores), bookstores;
- waiting rooms (in hospitals, bus stations, ports), public means of transport.
Under the combined provisions of the regulations referred to above, employees working in “public places” are therefore required (by law, rather than by contract or demand of their employer) to wear a mask, although they show any symptoms. Consequently, employees required to work in public areas not wearing a mask in such places would be in breach of a legal obligation and could be sanctioned accordingly. In the event of a violent outbreak of a dangerously infectious disease, such a breach may even be considered so serious (if carried repeatedly, for example) as to justify a termination of the employment relationship.
With regards to employees working in private offices, it is not clear whether such work-spaces may fall within the definition of public spaces (although, theoretically, the health reasons underlying the Regulations referred to above may well be applicable to big offices, especially those adopting open-space layouts). However, the Regulations, also clearly require that companies (and, therefore, employers) have a responsibility in the prevention and control of the epidemic and should strengthen the health monitoring and timely report any abnormal situation to relevant authorities. Where a company/employer has reasons to believe that an employee may suffer from, or shows symptoms of, an infectious disease, it has a duty to urge the employee to seek medical treatment, accept and cooperate with the Centers for Disease Control and community health service centers to carry out investigation and handling of infectious diseases, and implement the relevant prevention and control measures.
Under such circumstances, an employer would, therefore, be under an obligation to require an employee showing symptoms of an infectious disease to adopt such prevention and controlling measures as may seem reasonable or necessary, including that of wearing a mask while in the office.
ii. Is it possible for an employer to require an employee showing symptoms which may be associated to those of Covid-19 to leave the office and work from home for the safety/protection of all the other employees?
In such a situation, for the reasons and according to the provisions explained above, an employer would have a legal obligation to take controlling and prevention measures. Therefore, where an employee showed symptoms of a potential respiratory infectious disease, it would be a reasonable measure to ask him/her to work from home (or have his/her health condition verified in the event smart-working or remote-working may not suitably apply to his/her duties).
As a precaution, where an employer fears that other situations similar to an outbreak of an infectious disease may occur in the future, specific provisions may be inserted in the Employees' Handbook with the aim of regulating such situations (in particular, the use of personal protective equipment in the office and the conditions upon and according to which smart-working or remote-working may be requested by the employer). In such circumstances, the employees would also have a contractual obligation to abide by the directions of the employer.
iii. Is it possible for an employer to require by contract to existing or new employees to get vaccinated against Covid-19 (or, more generally, to get any other vaccination the employer may consider useful for the safety of the employees)?
China follows and implements a system that sets both a right and an obligation for individuals living in China to get vaccinated against diseases that fall within the immunization program established by the law. To date, Covid-19 vaccine has not yet been added in the Chinese immunization program.
Under such premises, an obligation to get vaccinated could not be provided for by contract, as the decision as to whether getting vaccinated is ultimately a choice of the individual (as an expression of his/her freedom, also recognized at constitutional level, of accepting or refusing a medical act). Even where public health concerns were raised, such as in a pandemic of the kind of the Covid-19 one, and where vaccination may be considered as an efficient solution against the spreading of an infectious disease, only a specific law would have the power to create an obligation to get vaccinated. Any contractual arrangement imposing such an obligation would probably be considered invalid and certainly not enforceable.
iv. Is it possible for an employer to dismiss an employee who refuses to get vaccinated against Covid-19?
As of today, vaccination against Covid-19 in China is not compulsory, but only recommended (where available). An employee refusing to get vaccinated would, therefore, not be in breach of any obligation. A dismissal of an employee based on such a refusal would therefore be groundless and illegal.
Similarly, an employer could not refuse to hire a person merely on the fact such person is infected with Covid-19. As a matter of fact, the Provisions on Employment Service and Employment Management, establish that an employer cannot refuse to employ a person on the ground that the candidate is a carrier of some infectious pathogen. In such case, the person found (after an appropriate medical verification) to be an infectious pathogen carrier would only be required not to take up his/her job (without any discrimination) before being cured or otherwise cleared from being a potential threat of an infectious disease. This conclusion seems to be upheld by the fact that, according to the current medical knowledge, it is still not clear as to whether the vaccine against Covid-19 provides merely a protection to the vaccinated person from the symptoms of the disease or also prevents the same person from infecting other people. In the former case, the fact of being vaccinated would not eliminate the risk of further spreading the infectious disease and could, therefore (from a logical standpoint, rather than a legal one), not be considered as necessarily required for the protection of the other employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.