Singapore tripartite partners issue new advisory on mandatory COVID-19 vaccination policies

On 2 July 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 in employment settings.

The new advisory comes in the wake of the Government’s recent announcement that it would be accelerating its vaccination and testing programmes, with the aim of having two-thirds of the population vaccinated by National Day (9 August 2021). This has left many employers asking how far they can go in terms of encouraging their employees to get vaccinated, whether they can ask them to confirm their vaccination status and, if they have not, what steps they can take (if any). It has been a difficult balancing act between safeguarding workplace health and safety and respecting individual privacy. This new advisory appears to give employers clarity on these issues.

We have set out below a summary of the recommendations, together with some key takeaways which employers and HR teams should consider. The full text of the advisory can be accessed here.

General policy: Vaccination not mandatory

The advisory restates the Government’s position that everyone who is medically eligible to get vaccinated when offered is strongly encouraged to do so. However, it also makes clear that in order to reflect the national vaccination policy, employers should not make COVID-19 vaccination mandatory.

Nonetheless, employers should strongly encourage and facilitate all their medically eligible employees to get vaccinated e.g. by granting paid time-off to employees for COVID-19 vaccination, facilitating public education programmes on vaccine safety and efficacy for their employees.

Employers may also ask employees for their vaccination status for business purposes e.g. business continuity planning. However, employees who decline vaccination should not be penalised e.g. by having their employment terminated on the ground of declining vaccination.

Exceptions for higher risk settings

Despite the general policy outlined above, the advisory recognises that there is a small and exceptional number of employment settings where some employees may be exposed to a higher risk of COVID-19 infection. To ensure the health and safety of employees and to minimise the risk of outbreaks, employers may, if they wish to do so, require COVID-19 vaccination as a company policy for these higher risk employment settings. Employers may also impose this vaccination requirement upfront at the point of recruitment or advertisement for new hires into these higher risk employment settings.

The higher risk settings are:

1. Employees working in an environment that exposes them to significantly higher risk of COVID-19 than in the general community. Examples of such employees include:

• laboratory employees working on COVID-19;
• employees in regular contact with COVID-19 patients e.g. healthcare employees;
• aircrew;
• frontline maritime employees; and
• hotel employees in contact with people serving Stay Home Notice (SHN).

2. Employees in a communal living environment where Safe Management Measures may not be effective or practicable i.e. employees living in dormitories.

3. Where the work environment or the nature of work does not allow for Safe Management Measures to be effective or practicable. These include employees performing activities that require masks to be removed frequently, or working in high density workplaces where safe distancing may not be effective or practicable and there is risk of large clusters forming. Examples of such employees include:

• professional athletes engaged in sports requiring close physical contact; and
• construction, marine shipyard and process employees (excluding headquarter employees who are not deployed to work sites).

If employers adopt a company policy of requiring COVID-19 vaccination for higher risk employment settings, they should provide affected employees with additional paid sick leave (beyond contractual or statutory requirements) to support their recovery from any immediate adverse medical complications arising from vaccination.

They should also clearly communicate the following and make reasonable efforts to find out why employees decline vaccination and address their concerns:

• reassure employees that they will not be penalised or have their employment terminated because they decline COVID-19 vaccination;
• jobs or employment settings which expose employees to a higher risk of COVID -19 infection and the reasons why vaccination is required for these employees;
• measures taken by employers for employees who decline vaccination (see below); and
• any forms of assistance offered to individuals who suffer from adverse complications due to the vaccination requirement.

Measures for those who decline vaccination

Employers who want to require COVID-19 vaccination for employees in the above higher risk settings may, in consultation with the unions (if applicable), adopt the following measures for employees who decline vaccination:

• redeploy the employee to another job with a lower risk of COVID-19 infection that is commensurate with the employee’s experience and skills. Any such redeployment should be in accordance with the employer’s existing redeployment policies (if applicable). If there are no existing redeployment policies, the terms and conditions for redeployment should be mutually agreed between the employer and the employee; or
• recover COVID-19 related costs (e.g. COVID-19 testing costs or costs of SHN accommodation) incurred by the employer from employees that are over and above the costs incurred for vaccinated employees in similar employment settings. These costs can be recovered either through salary deductions (to the extent permitted by law) or requiring the employee to pay the relevant service provider directly. In addition, employers may adopt a differentiated leave policy for vaccinated employees versus employees who decline vaccination such as putting the latter on no-pay leave for the duration of any SHN served.

If the workforce is unionised, employers can agree other measures with the union.

The advisory makes clear that under no circumstances should an employer terminate or threaten to terminate the service of an employee on the ground of declining vaccination.

Employers should also exempt (from the vaccination requirement) employees who belong to groups identified by the Ministry of Health as not suitable to receive the COVID-19 vaccine or are not scheduled for vaccination yet. To reduce the risk of infection at the workplace, employers may decide whether to redeploy these employees (as described above). However, employers should not impose cost recovery measures (as described above) if such employees decline the redeployment offer.

Takeaways

• The advisory suggests that employers can ask employees about their vaccination status provided this is for “business purposes”. However, employers should also be mindful of the need to comply with applicable data privacy requirements which may impose more stringent requirements on the collection of what amounts to employee personal data.
• The advisory expressly recognises the validity of offering incentives for employees to get vaccinated. This is a welcome clarification and reflects the reality that many companies are already doing this in practice.
• Employers are now able to adopt different strategies depending on whether the employees are viewed as being in higher risk or lower risk settings. For employers with employees in both categories, they will need to consider whether any difference in treatment will create employee relations issues notwithstanding that this may be in accordance with the advisory recommendations.
• The advisory suggests the categories of higher risk employment settings are not exhaustive, and that a useful reference point is whether the employee is required to undergo Rostered Routine Testing (RRT), mandated Fast and Easy Testing (FET), or is in regular contact with known COVID-19 cases/persons who are isolated due to risk of COVID-19. This opens the door to imposing mandatory company vaccination policies for employees in other sectors not expressly referenced in the advisory e.g. F&B, gyms.
• The measures that employers can take against higher risk employees who decline to vaccinate are limited – being only redeployment or recovery of additional costs incurred. In the case of the former, employers should check whether their redeployment policies contain any obstacles that would prevent them from doing this and, if so, whether they should be updated. In the case of the latter, employers need to be mindful that any deductions from salary can only be carried out within the limitations of the Employment Act which only permit deductions on specific grounds and subject specific caps.
• It is clear that termination of employment on the ground of declining vaccination is not permissible.
• Employers should consider updating their leave policies to allow for differential treatment in the case of higher risk employees who decline to vaccinate. Again, however, they should also factor in the employee relations impact associated with this difference in treatment.
• Employer should also review their existing onboarding and recruitment processes and check whether they need to be updated to reflect any new policy of mandatory vaccination for higher risk employees. Similarly, offer letters and employment contracts should be updated for such higher risk employees to reflect vaccination as being a condition of employment.
• Given the ongoing sensitivities associated with disclosing vaccination status which is and will continue to be a highly personal matter, any policy of mandatory vaccination for higher risk employees still needs to be carefully implemented and communicated to impacted employees.

DLA Piper has also recently launched our Global COVID-19 Vaccine Guide for Employers. The Guide looks at some of the key considerations with regard to requiring or encouraging employees to be vaccinated and highlights some of the differences in risk across 27 jurisdictions around the world.

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.