Legal development

Vaccines and Workplace Entry

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    What you need to know:

    • From 1 January 2022 it will be mandatory for most employees entering the workplace to either (a) be vaccinated; or (b) have a negative Pre-Event Testing (PET) result.
    • Unvaccinated staff who continue to work from home may have their absence from the workplace taken into consideration during performance appraisals, while unvaccinated staff who cannot work from home may be redeployed, placed on no pay leave or, as a last resort, have their employment terminated.
    • Employers can now require that all new hires are vaccinated, regardless of the vaccination status of other employees in the same role.
    • Employers are now able to access a web service to confirm the percentage of staff who are vaccinated – however, an exact figure is not provided and unvaccinated employees are not specifically identified. 
    • These changes, combined with the entry of Sinovac into the National Vaccine Programme, are designed to incentivise the small percentage of unvaccinated individuals in the resident workforce to receive vaccination.  
    • The Safe Management Measures have been updated to reflect these changes, as well as the simplified health protocols imposed by the Ministry of Health where an employee tests positive.

    What you need to do:

    • Ensure your Safe Management Measures plan is updated to reflect the new arrangements.
    • Consider how you will verify vaccination status for those employees who have not yet been required to provide evidence of vaccination.  Ensure that your data privacy policy is up to date if you are collecting employee vaccination information.
    • Decide your approach to the management of unvaccinated employees and return-to-work policies, and advise your staff of that approach and policies in advance of 1 January 2022. 

    Updated advisory on COVID-19 vaccination in the workplace

    The updated advisory issued on 23 October 2021 is the third iteration of the tripartite partners' guidance regarding workplace vaccination measures.  It represents a middle ground between the first iteration (which categorised industries based on risk, suggesting that compulsory vaccination was appropriate only for high risk industries) and the second iteration (which prohibited mandating vaccination as a condition of entry to the workplace, but encouraged the use of the Vaccinate or Regular Test Regime (VoRT)) of the guidance.  Most importantly, it signals a significant shift with respect to termination of employment – the latest guidance is the first explicit recognition that an employer may be entitled to terminate the employment of an employee (outside of high risk industries such as healthcare) who is not vaccinated and cannot work from home.

    The updated advisory is drafted on the basis that by 1 January 2022 work from home will no longer be the default, subject to the prevailing circumstances.

    What does the updated Advisory say?

    While media headlines announcing the release of the updated advisory suggested a blanket rule that only vaccinated employees would be allowed into workplaces from 1 January 2022, this is not strictly speaking correct.  Unvaccinated employees will be permitted to attend the office, if they:

    • have recovered from COVID-19 within the last 270 days; or
    • have a negative Pre-Event Testing (PET) result that covers them for the duration that they are required to be present at the workforce.

    For unvaccinated employees, the testing requirement is more onerous than that imposed under the VoRT regime – results must be provided by an MOH approved provider and are only valid for 24 hours.  For an unvaccinated employee required to be in the office for the full working week, this would likely involve the taking of five COVID-19 tests, outside of the employee's working hours.

    The requirements also come with a financial cost for unvaccinated employees – employees are required to bear the cost of each PET, with the MOH's list of accredited providers charging a minimum of approximately $30 for each test.  Based on existing guidelines governing PET,  testing requirements can be combined with the Rostered Routine Testing (RRT)1 requirements. If current testing guidelines for PET and RRT do not change beyond 1 January 2022, it may be possible that unvaccinated employees who are subject to the RRT regime would only need a PET for the period not covered by their RRT results. It remains to be seen whether the existing PET and RRT requirements will be updated prior to 1 January 2022.

    The updated advisory repeats the importance of employers facilitating and encouraging vaccination within the workplace.  It confirms that employers are entitled to require employees to provide proof of vaccination, and that employees who refuse to provide evidence can be treated as unvaccinated.  

    Finally, there is a significant change with respect to the mandating of vaccines for new hires – under the previous version of the advisory, employers could only require new hires to be vaccinated if all employees in similar role were vaccinated.  This requirement has now been removed, with employers able to require vaccination for all new hires. 

    Do employers have to let unvaccinated staff attend the workplace with a PET?

    The requirement to receive a negative PET to attend the office applies to all unvaccinated employees, however the existing rules have had less of an impact on those unvaccinated individuals who are able to work from home.  While the updated advisory provides that employers may allow unvaccinated employees to continue to work from home, outside of times when Safe Management Measures require work from home by default, such arrangements remain the prerogative of employers.  That is, unless the Safe Management Measures require work from home, an employer would be able to require an unvaccinated employee to attend the workplace and comply with the PET requirements.  Where an unvaccinated employee does continue to work from home, there is an implicit acknowledgment in the updated advisory that such an arrangement might affect the relevant employee's performance appraisal.  

    With respect to unvaccinated employees who cannot work from home, the updated advisory permits an employer to:

    • redeploy an unvaccinated employee to a suitable job that can be done from home (if such a role is available) with remuneration being commensurate with the alternative duties.  Unlike previous iterations, the updated advisory no longer suggests that employee consent is required for the redeployment; or
    • place the employee on no pay leave, or as a last resort, terminate their employment (with notice).  The updated advisory confirms that, where the reason for termination of employment is the employee's inability to attend the workplace to perform work, the termination will not be regarded as a wrongful dismissal.

    The updated advisory does not provide any guidance on when an employer might pursue redeployment or termination rather than to allow an employee to continue to attend for work with a negative PET, other than to state that termination should be a last resort.  Employers should carefully consider the circumstances of its business and the specific circumstances of each employee before proceeding to redeploy or terminate an employee's employment.

    The approach to performance appraisals and termination of employment in the updated advisory represents a significant departure from previous iterations of the workplace vaccination guidance, which have maintained that an employer may not take adverse action against an employee, including termination of employment, by reason of the employee having declined to be vaccinated. 

    What about vulnerable employees or those who can't be vaccinated?

    As expected, the updated advisory includes specific exemptions for those who are not medically eligible for vaccination.  When dealing with employees who have been certified (presumably by a qualified medical practitioner) as ineligible for vaccination employers should:

    • allow the employee to work from home, with such an arrangement not affecting their performance appraisals; or
    • redeploy the employee to a suitable role that can be done from home (if such a role is available) with remuneration being commensurate with that role; or
    • allow the employee to attend the workplace (if required to perform their role) after receiving a negative PET result.

    Given the addition of Sinovac to the National Vaccination Programme, there is likely to be a significantly smaller number of individuals who remain ineligible for vaccination.  Notwithstanding that individuals who are pregnant are eligible for vaccination, the updated advisory also recommends that employers give consideration to pregnant employees, and consider treating them similarly to employees who are medically ineligible to be vaccinated.  

    Collection of vaccination data

    While the updated advisory provides that an employer may "require" an employee to provide proof of vaccination, a failure to comply with this requirement would not allow the employer to take disciplinary action against the employee.  Rather, an employee who chooses not to provide proof of vaccination should be treated as unvaccinated.  

    Many employers have grappled with the question of how to require employees to prove that they are fully vaccinated.  Some employers have requested that employees provide copies of vaccination certificates as part of a one off verification exercise.  Others have requested that employees show their vaccination status on their TraceTogether app as part of a one off exercise or on a daily basis, consistent with the approach taken at locations where vaccinated differentiation measures are in force.

    Depending on the employer's specific business, either approach may be acceptable.  However, those employers who choose to collect vaccination certificates need to be particularly mindful of their obligations under Singapore's data privacy legislation.

    Conclusion

    The introduction of the updated advisory represents a significant departure from the previous position with respect to unvaccinated employees.  It demonstrates the commitment of the Singapore government to achieving as high a vaccination rate as is possible and pressing on with its plans to re-open the Singapore economy. 

    Please contact us if you would like more information on any of the issues raised.

     

    Authors: Dawn Tan (Managing Director, Ashurst ADTLaw); Karen Mitra (Counsel, Ashurst); Tristan Teo (Senior Associate, Ashurst ADTLaw).

     

    1. Under the RRT regime, workers in certain high-risk sectors (e.g., healthcare) are subject to periodic PCR / ART tests.

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