Can you legally demote unvaccinated employees?

The Ministry of Manpower (MOM) has made clear that employers in Singapore can redeploy unvaccinated employees to a job with a lower risk of infection. There are terms and conditions to do so, and employers should carefully consider the decision as it may lead to legal risks or disputes with affected employees. HRD spoke to three employment lawyers to find out how to redeploy unvaccinated staff in a fair manner.

How to manage unvaccinated employees

In the latest advisory on managing vaccinations, MOM stated that employers can continue to deploy unvaccinated employees in higher risk activities, such as frontline work or those with frequent interactions with customers, and implement a regular testing regiment for staff. The testing frequency can follow guidelines from the Ministry of Health (MOH): depending on the sector, it can be as often as twice a week or just a weekly affair. This measure can be part of your adoption of the government’s latest ‘vaccinate or regular test’ (VoRT) policy.

Alternatively, you can redeploy staff to job roles with a lower risk of infection, for instance moving frontline workers into backend or office-based work. The redeployment, however, “must be consistent” with the staff’s experience and skills and any internal redeployment policies which the employer has in place, said Thomas Choo, partner at Clyde & Co Clasis Singapore.

Read more: Is it legal to ask staff to declare their vaccination status?

The legal risks of redeploying staff

“If there are no existing redeployment policies established by the employer, the terms and conditions of the redeployment would need to be agreed between the employer and the staff,” said Choo. Fellow employment law experts Dawn Tan, director at Ashurst ADTLaw and Karen Mitra, senior associate at Ashurst explained the scenario further. “If the employer attempts to unilaterally change the terms and conditions of the employment, this may give rise to a dispute and, potentially, form the basis of a claim against the employer,” they said.

This is especially if the redeployment results in a loss of pay, loss of career progression opportunity, or opportunity to generate additional income such as commission payments. “The advisory allows employers to continue to deploy unvaccinated employees to higher risk activities, subject to regular testing requirements so redeployment may not be necessary,” they said. “If an employer wants to redeploy an unvaccinated employee to an alternative role, then this should be done in accordance with existing policies.”

Read more: Will workplace bullying rise as a result of COVID-19 vaccines?

How to fairly reassign employees

The Ashurst ADT legal team then shared how employers can avoid claims of unfair treatment when managing the reassignment process. “In order to avoid allegations of unfair treatment, employers could consider developing a policy or set of principles regarding the manner that it will assess which employees will be redeployed and the terms and conditions that will be offered to those employees,” they said.

Those principles should be developed having regard to the specific requirements of the workplace such as:

• the risk of COVID-19 exposure for different types of roles,
• and the types of roles to which employees could be redeployed.

Once developed, the principles can be applied fairly to each instance of required redeployment. “The employer should discuss the terms of the proposed redeployment with the employee based on the principles and ultimately the terms of the redeployment agreed between the parties,” they said.

Read more: Vaccination: What’s HR’s role in managing employees?

Can you demote unvaccinated employees?

While redeployment is allowed, employers should avoid situations that can lead to claims of unfair penalties like demotions or threats of termination. “Demotion would be somewhat trickier though as this would not be aligned with the MOM guidelines being that the redeployment should ‘commensurate with the employee’s experience and skills’,” said Choo. “This should then fall back on the reasonableness test, as to whether the demotion is warranted in the first place.”

MOM has also made clear that “under no circumstances” should an employer terminate or threaten to terminate an employee solely based on their vaccination status. Employers should also avoid placing employees on no-pay leave for an extended duration without their mutual consent in writing. Regardless, employers may exercise their right to contractually terminate employment if unvaccinated employees do not comply with reasonable vaccination-differentiated workplace measures.

“While employers have a role to play in encouraging vaccination, they should not set out to sanction or penalise those employees who are not vaccinated,” said Tan and Mitra from Ashurst ADT. “If a situation arises where a different approach may need to be taken with respect to an employee based on their vaccination status, give meaningful consideration as to whether differentiated treatment is actually necessary to ensure employee safety.

“Where this is necessary, however, and in order to comply with your obligations as an employer and ensure safety, the reasons for the decision should be clearly communicated to the employee, including the reason any alternative approaches were not able to be adopted.”

Read more: Vaccinations: Will you monitor staff jabs?

_{ADTLaw LLC and Ashurst LLP together form Ashurst ADTLaw in Singapore. Ashurst LLP is licensed to operate as a foreign law practice in Singapore. Where advice on Singapore law is required, we will refer the matter to and work with licensed Singapore law practices where necessary. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying it to specific issues or transactions.}