Vietnam’s latest COVID-19 outbreak, which began in late April 2021, crippled the economy and daily life. As factories and businesses are forced to close, disruptions in the global supply chain have started to appear when it comes to products originating from Vietnam, such as clothing and coffee. Due to the highly contagious nature of the Delta strain of the virus, previously effective measures such as containment and isolation of infected patients have been insufficient; instead, mass vaccination of the population is needed. Vietnam recognizes this and has launched a vaccination campaign with the aim of vaccinating 70% of the population by the end of 2021.
Companies also recognize the need to vaccinate their workers in order to keep their factories and workplaces open. In this article, we explore whether Vietnamese employers can require their employees to be vaccinated, as well as the associated disclosure and confidentiality issues under Vietnamese law.
Can an employer require the vaccination of his employees?
In general, an employer cannot require the vaccination of its employees. Neither the government nor the employer has the power to demand that an individual be vaccinated. However, due to the plight of Vietnam where infections are skyrocketing and months of lockdowns, the government is giving authorities wider powers. On August 6, 2021, the government issued Resolution No. 86 / NQ-CP on Urgent Solutions for the Prevention and Control of COVID-19 in order to implement Government Resolution No. 30/2021 / QH15 (Resolution 86). Resolution 86 gives local authorities broad powers to prevent and control the COVID-19 pandemic. Under this resolution, local authorities could require that employees working in an industrial park be vaccinated, and in this case, an employer located in the affected area could demand that their workers be vaccinated.
If an employee refuses to be vaccinated in this situation, their employment may be temporarily suspended or the employer may be allowed to take other measures, depending on the latest law and guidelines from local authorities to prevent and control COVID. . -19 pandemic. As these regulations change and evolve rapidly, we recommend that employers check the most up-to-date regulations to determine their action plans available under these circumstances.
While employers may have the right to take certain cost-cutting measures with respect to an employee who refuses to be vaccinated, this would not form a basis for unilaterally terminating or firing the employee. An employee fired on this basis could sue for unfair dismissal, and if the court ruled in favor of the employee, the court would order the employer (i) to reinstate the employee, (ii) to pay the employee. ” employee the salary and benefits for the period during which he was unable to work, including all compulsory insurance contributions during this period, and, (iii) pay the employee at least two additional months of salary in compensation for emotional distress.
Can an employer require an employee to report if they are vaccinated?
Employers can ask employees to voluntarily disclose whether they have been vaccinated, but there is no default obligation on the employee’s part to disclose this information. An employee may be required to disclose this information if there is a government order requiring the vaccination of employees in an industrial park or workplace, or if this duty to disclose is set out in the employee’s employment contract, employment policy. employer’s health and safety at work, the employer’s internal labor regulations (the company’s internal regulations registered with the local labor authority) or a collective agreement between employees and the employer .
Employers are urged to review these documents, especially their workplace safety and health policies, to ensure they are dealing with the ongoing COVID-19 pandemic. Employers may wish to include an obligation for employees to provide information about their state of health if it could affect the occupational health and safety of other people in the workplace. They may also wish to address COVID-19 testing in these documents and specify that employees must consent to testing at the employer’s request. Under the Occupational Safety and Health Act, employers, together with the union at company level, must formulate occupational safety and health policies, and employees are required to follow them. to follow. Thus, if COVID-19 prevention measures such as testing and the obligation to disclose symptoms related to COVID-19 are included in these policies, employers can much more easily implement such measures at their place of work. job.
Can an employer offer any incentives or benefits to encourage employees to get vaccinated?
Employers can offer benefits to employees to encourage them to get vaccinated; however, there is a potential risk that this could be considered a case of discrimination in the workplace under the Labor Code. While vaccination status is not listed as a protected ground under section 3.8 of the Labor Code, disability is a protected ground. So, if an employee was unable to get the vaccine due to an underlying health condition (which could be characterized as a disability), offering benefits to only those vaccinated employees could be considered discriminatory. Nonetheless, given Vietnam’s current plight, it is highly unlikely that the labor authority or the courts will support an employee claim that could slow vaccinations. In addition, employers could provide a special exception for employees who could establish that their non-vaccination was due to an underlying health problem in order to avoid any possibility of a complaint of discrimination.
Are there regulatory requirements for an employer’s collection, processing or storage of employee immunization information?
An individual’s immunization status would be considered personal information and therefore would be protected by Vietnamese privacy laws. These laws are currently scattered across different pieces of legislation, but a common key principle under them is that the collection, storage, use, processing, publication, disclosure and transfer of information and documents relating to an individual’s privacy or personal information must be consented to by that person, unless consent for such a transaction is exempted by law; and the use of this information must be consistent with the scope of the consent given. Thus, an employer can only share information regarding the immunization status of its employees with their informed consent.
Although the law does not specify an employee’s consent form in such circumstances, we recommend obtaining express and affirmative consent. This consent could be in a document written with a wet signature, or by email or on an online website with a click mechanism. The consent form must include the following information and content: (i) the purposes for collecting the information; (ii) the extent of the use of the information; (iii) the duration and form of information storage; (iv) to whom the personal information will be transferred; (v) the persons or organizations likely to have access to the information; and, (vi) the individual’s right to correct or revise their information. Employers are required to comply with the specifications set out in the consent forms.
Vietnam’s personal data protection law will likely change in the near future, and under the future law, it will be incredibly onerous for employers to process their employees’ vaccine status information. The Ministry of Public Security (MPS) published a draft decree on the protection of personal data (the “draft decree”) in February 2021, which is expected to come into force in the course of 2022. The draft decree makes the distinction between “source data”; and “sensitive data”, and an individual’s medical information is classified as “sensitive data”. Organizations wishing to process sensitive data should register with the MPS Personal Data Protection Commission (PDPC) before engaging in this activity. This registration process involves the submission of an impact assessment report addressing the potential harm to data subjects as a result of the proposed treatment and measures to manage, minimize or eliminate such harm.
In addition to these registration requirements, the draft decree broadened the obligations of the processor with regard to obtaining informed consent and obliges the processors to adopt administrative and technological measures to protect personal data, and report back to the PDPC. (For more details, please see “A Further Review of Vietnam’s Much-debated Draft Decree on Personal Data Protection.”) Thus, once the draft decree is finalized and comes into force, it will be extremely costly for individuals. employers to collect and process data on their employees’ vaccination status.
Recommended actions for the future
We recommend that employers carefully monitor government orders to determine whether those orders authorize them to mandate vaccination of employees. Employers could also consider reviewing their employment contract models, internal labor regulations and occupational safety and health policies, to determine whether they need to be updated to deal with the current pandemic of COVID-19. These documents should include provisions requiring employees to disclose their immunization status and consent to COVID-19 testing. Employers should also initiate a dialogue with the union at company level (if one exists), as union cooperation will be required in order to change internal labor regulations and workplace safety and health policies. job.
Employers should also write consent forms for processing information about their employees’ immunization statuses that comply with the law, and monitor the status of the draft decree to determine whether its policies for handling this information need to be updated. day.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.