[author: Kent Woo]*
We asked our member firms around the globe to provide some insight on employer and employee rights when it comes to requiring the COVID-19 vaccine to return to work. Kent Woo shares his views from China. To view responses from other countries, click here: www.theworldlawgroup.com/knowledge-center/employer-covid-19-vaccine-policies
Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
The short answer is no. COVID-19 vaccination in China is voluntary.
In December 2020, the Joint Working Mechanism for the Prevention and Control of the Pandemic of the State Council (国务院联防联控工作机制) announced that China will first vaccinate workers in industries will higher exposure risks, such as cold-chain logistics, customs, medical care, and seafood markets, etc. on a voluntary basis.
Similarly, the Ministry of Transportation also announced in December 2020 that public transportation front-line workers will be receiving vaccinations on a well-informed and voluntary basis.
Therefore, employers cannot require compulsory COVID-19 vaccination in China at this point. It should be noted that in practice the employees might feel pressured to take vaccination due to the promotion of the vaccination and the high vaccination rates in certain industries.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
Since the COVID-19 vaccination in China is voluntary, the employees have the legal right to refuse to be vaccinated.
On the other hand, employers still have the legal responsibility to provide a safe work environment under the Chinese laws, so they can formulate reasonable internal rules such as taking the employee’s body temperature at reasonable intervals, or requiring employees to wear masks, etc. Such requirements may be incorporated into the internal rules and policies (usually in form of an ‘employee handbook’) of the employer.
It should be noted that according to Article 4 of the Labor Contract Law of the PRC, where an employer formulates or amends its rules and policies concerning work safety and sanitation which are directly related to the interests of the employees, such rules or policies shall be discussed at the meeting of employees' representatives or the general meeting of all employees, and the employer shall also put forward proposals and opinions to the employees and negotiate with the labor union or the employees' representatives on an equal basis to reach agreements on these rules or policies. Employers should further make sure to inform every employee of such new internal rules and policies before effectuating the same.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
Likewise, employers in China cannot dismiss employees for refusal to comply with a vaccination policy. An employee’s refusal to take a COVID-19 vaccination alone will not constitute just cause for termination.
What benefits or accommodations do employers have to make for vaccinated employees?
The employer does not have to make benefits or accommodations for vaccinated employees.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
No, those employees are not legally entitled to refuse to work in the same vicinity as employees who are not vaccinated.
In your country, are employers required to provide paid leave for employees to get vaccinated?
Employers are not required to provide paid leave for employees to get vaccinated given its voluntary nature.
*Zhong Lun
