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E-news Issue 259

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EOC supports Government’s “Early Vaccination for All” campaign with vaccination leave for staff

On 31 May 2021, the SAR Government announced the provision of vaccination leave for Government employees who have received the COVID-19 vaccination, and the launch of the “Early Vaccination for All” campaign, which aims to raise the vaccination rate and build an immune barrier in Hong Kong.

Following the announcement, the EOC announced on the same day that it would support the campaign by offering similar vaccination leave to EOC’s employees, with a view to encouraging staff members to take up the vaccine. On 2 June, the EOC released the details: while staff members would be entitled to a day of leave for each dose of vaccine received between 1 June and 31 August 2021, those who received vaccination on or before 31 May could, for each jab, apply for one day of authorised absence, which may be taken by 31 March 2022.

As more and more employers are rolling out different kinds of vaccination-related measures, questions have been raised on whether differential treatment of employees based on vaccination status would constitute unlawful discrimination. On 3 June, Executive Director (Operations) of the EOC, Dr Ferrick CHU Chung-man, spoke on RTHK Radio 1 to explain how the anti-discrimination ordinances may apply.

Without commenting on specific cases, Dr Chu said that under the ordinances, blanket measures would only amount to unlawful indirect discrimination if: (i) employees sharing a protected characteristic – pregnant employees and those with pre-existing illnesses, for instance – are less likely to be able to comply with the condition or requirement imposed; (ii) they suffer a detriment because they cannot comply accordingly; and (iii) the condition or requirement is not justifiable. In assessing the justifiability of a measure, employers should consider that granted there is a legitimate purpose such as preventing the spread of an infectious disease, the measure would still have to be relevant and proportionate to the stated purpose. Therefore, depriving staff of existing benefits and entitlements because of their unvaccinated status – without providing any accommodation for employees who are pregnant or suffering from pre-existing illnesses – may be unjustifiable. On the other hand, offering incentives may be a more proportionate measure and thus more likely to be justifiable.

Dr Chu also clarified the statutory role of the EOC, that is to encourage conciliation in complaints lodged under the anti-discrimination ordinances rather than adjudicate on the lawfulness of specific measures, which is a question for the court.

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