New Singapore Tripartite COVID-19 Advisory

On 23 August 2021, the Singapore tripartite partners (Ministry of Manpower, Singapore National Employers Federation and National Trades Union Congress) issued a new advisory regarding COVID-19 vaccination at the workplace (Advisory). The Advisory replaces the previous advisory that was in place since July which we covered in our previous alert here.

As we covered in our previous alert, from 1 October 2021 the Government will begin rolling out a “vaccinate or regular test” (VoRT) regime for employees in selected sectors including healthcare, eldercare, settings with children 12 years and below, sectors that interact with customers in higher-risk mask-off settings (e.g. F&B establishments, gyms and fitness studios, personal care services) and public servants. Under the VoRT regime, employees will be required to vaccinate or undergo regular testing twice per week.

The latest Advisory encourages all employers in the other remaining sectors to consider adopting the VoRT regime as a company policy for existing employees and existing hires, and enables employers who do to treat employees differently depending on their vaccination status in certain respects. These differentiated measures include:

• Recovering additional costs of the unvaccinated. Employers can require medically eligible but unvaccinated employees (i.e. excluding employees who are medically ineligible for mRNA vaccines) to bear certain additional costs associated with being unvaccinated which are incurred over and above those for vaccinated employees.

This includes, for example, the cost of test kits and accommodation for employees required to serve a Stay-Home Notice. These expenses can be recovered either through salary deductions or by requiring employees to pay the relevant service provider directly.

If an unvaccinated employee is discharged later from treatment or subject to longer restrictions on their movements (e.g. being subject to a Stay-Home Notice) compared to vaccinated employees, then they can be required to utilize days from their existing leave entitlements. If the employee’s leave entitlements have been exhausted, then they may be required to go on no-pay leave.

Employers can also choose to exclude such employees from medical benefits associated with COVID-19 (e.g. insurance coverage).

• Work and social events. Employers may require unvaccinated employees to undergo Pre-Event Testing (PET) before participating in workplace events, or implement reduced group sizes when unvaccinated employees participate in such events – especially those involving mask-off activities.

• Deployment. While employers may continue to deploy unvaccinated employees in higher risk activities with regular testing, they can also decide whether to redeploy these employees to another job with lower risk of COVID-19 infection, commensurate with the employee’s experience and skills. Any redeployment should be in accordance with the terms of any existing redeployment policies or, if there are none, then the terms and conditions for redeployment should be mutually agreed.

• Asking about vaccination status. All employers may ask employees for their vaccination status for business purposes e.g. business continuity planning. Employers that adopt the VoRT regime can further require employees to produce proof of vaccination. Employees who refuse to do so would be treated as unvaccinated for the purposes of the vaccination-differentiated measures and the bearing of costs as set out above.

Employers can also, on their own accord, implement other workplace measures provided they are able to justify to employees and/or the Government (e.g. in the event of a dispute) that such measures are reasonable and necessary for business operations and to better protect the health and safety of all employees.

Takeaways

• The Advisory stops short of making the Government’s VoRT regime a mandatory requirement other than for employers in higher risk settings and the public sector – it will be left to employers in other sectors to decide whether or not to adopt the VoRT regime. However, there are clear and tangible benefits for employers who wish to do so, most notably in relation to the recovery of additional costs which may be incurred by unvaccinated employees, and the ability to ask employees for proof of vaccination status (which is now clarified).
• Despite the ability to recover costs, participating employers should generally follow the Government’s policy that it will fund the test kits of employees who are medically ineligible for mRNA vaccines – or have in place other arrangements for these employees. In addition, deductions from salary will still be subject to the parameters set out in the Employment Act which only permit deductions on specific grounds and subject to specific caps.
• The Advisory provides that employers should not place employees on no-pay leave for an extended duration without their mutual consent in writing. However, the Advisory does not define what is meant by “extended duration” in this context.
• Participating employers may also want to take advantage of the Advisory’s recommendation that other workplace measures may be permitted if they are “reasonable and necessary for business operations” and to “better protect the health and safety of all employees”. Other possible measures might include, for example, adopting different approaches to annual leave requests. While the exact remit of these terms has not been fully tested, it signals an indication that the Government will be open to employers who have adopted different measures provided they are able to justify their position.
• Participating employers will need to adopt the VoRT regime before 1 October 2021. Any changes to policy should be implemented in accordance with the terms of the employee’s employment contract and any applicable existing company policies. The changes may or may not require employee consent depending on how the terms of the contract/policies are drafted, and trade unions should be consulted (if applicable). Employers should note that the changes will need to be communicated to employees and have taken effect in advance of the 1 October deadline, and will therefore need to take preparatory steps with this in mind.
• In terms of testing frequency, participating employers are encouraged to refer to the Ministry of Health’s guidelines for the VoRT regime, which is generally twice per week. A test carried out under the existing Fast and Easy Testing (FET) or the Rostered Routine Testing (RRT) regime, which is either a Polymerase Chain Reaction (PCR) or supervised FET, also counts towards this requirement.
• The Advisory makes clear that under no circumstances should an employer terminate or threaten to terminate the service of an employee on the basis of vaccination status alone. However, employers may exercise their right to contractually terminate employment if unvaccinated employees do not comply with reasonable vaccination-differentiated workplace measures. This may be a difficult distinction for employers to draw in practice.
• While the Advisory is the clearest indication yet that the Singapore Government is in favour of workplace vaccination measures being introduced, practically speaking employers should still be mindful of the employee relations impact of having a differentiated workforce.

The full text of the Advisory can be accessed here. If you have any questions about how the impact of the new Advisory on your vaccination programme or company policies, or you would like to request a copy of our Global COVID-19 Vaccine Guide, please contact David Smail.

DLA Piper is restricted for regulatory reasons from practicing local law in Singapore, as are most international law firms. Where advice on Singapore law is required, we will work with a local firm to provide such advice while leveraging our own knowledge and experience as international counsel in international advisory and transactional work.