EOC Responds to Media Enquiries
In response to media enquiries about whether the introduction of the “vaccine bubble” scheme and the different treatments for COVID-19 vaccinated and unvaccinated employees/customers by employers/service providers constitute disability discrimination, the Equal Opportunities Commission (EOC) today (14 April 2021) has made the following response:
1. The EOC is responsible for implementing the four anti-discrimination ordinances in Hong Kong, namely the Sex Discrimination Ordinance (SDO), the Disability Discrimination Ordinance (DDO), the Family Status Discrimination Ordinance (FSDO) and the Race Discrimination Ordinance (RDO). After the implementation of the "vaccine bubble" scheme, those who have not been vaccinated may face some tighter epidemic prevention measures or arrangements. If those measures or arrangements are reasonably necessary for the purpose of protecting public health, they may be exempted under Section 61 of the Disability Discrimination Ordinance.
2. While the Disability Discrimination Ordinance (DDO) protects people from disability discrimination, which covers disability that “previously existed”, “presently exists”, “may exist in the future”, or is “imputed” to a person (including COVID-19), Section 61 of the DDO states that it is not unlawful to discriminate against a person with a disability if the disability is an infectious disease listed under the Prevention and Control of Disease Ordinance (e.g. COVID-19) and the discriminatory act is reasonably necessary to protect public health. As such, the prohibition on disability discrimination under the Ordinance may not apply in such circumstance.
3. Under the relevant anti-discrimination ordinances, discrimination can be direct or indirect. Direct discrimination refers to treating a person less favourably based on his/her characteristics, such as disability or pregnancy. Indirect discrimination means imposing the same conditions or requirements on everyone, but these conditions or requirements have a greater adverse impact for certain groups of people (such as people with disabilities or pregnant women). For example, if an employer requires all employees to be vaccinated against COVID-19, otherwise they will be dismissed, this requirement may have a greater adverse impact on those people who are not suitable for vaccination, such as people with serious illnesses or pregnant women. Unless the employer has reasonable grounds to support the requirement, it may constitute indirect discrimination on the grounds of disability or pregnancy.
4. Since not everyone is suitable for COVID-19 vaccinations, when imposing different treatments, employers and service providers should take into account the policies and suggestions by the Government in monitoring the latest developments of the pandemic, consider the needs of people who are not suitable for vaccination, and consider making other appropriate arrangements for them.
5. It is also understood that the government will discuss with certain sectors the details of the implementation of the “vaccine bubble” scheme, which may include some exemptions. The EOC hopes that they will consider the needs of those who are not suitable for vaccinations when discussing and implementing the details of the scheme, and make other appropriate arrangements for them.
6. If members of the public believe that they are being discriminated against because of their disability, sex, marital status, pregnancy, breastfeeding, family status or race, please contact the EOC for enquiry and assistance.
Equal Opportunities Commission
14 April 2021