Covid-19: Tripartite partners urge employers to adopt “Vaccinate or Regular Test” regime as company policy

31 August 2021

On 23 August 2021, the tripartite partners comprising the Ministry of Manpower (“MOM”), National Trades Union Congress (NTUC) and the Singapore National Employers Federation (SNEF) issued an updated Advisory on Covid-19 Vaccination at the Workplace (“Advisory”) and related FAQs to provide guidance to employers and employees regarding Covid-19 vaccination policies at the workplace. This Advisory supersedes the version issued on 2 July 2021.

From 1 October 2021, employees in selected sectors will be required to be vaccinated or undergo regular testing under the Vaccinate or Regular Test (“VoRT”) regime. Sectors subjected to the VoRT regime include healthcare, eldercare, settings with children aged 12 years and below, and sectors that involve interaction with customers in higher-risk mask-off settings (e.g. F&B establishments, gyms and fitness studios, personal care services). The full list of sectors on the VoRT regime can be found on the Ministry of Health (“MOH”) website.

To minimise risks of Covid-19 outbreaks and make workplaces more resilient, all employers are urged and encouraged to adopt the VoRT regime as a company policy on or after 1 October 2021 for existing employees and new hires. The Public Service, as the largest employer in Singapore, will lead by example in implementing the VoRT regime.

Vaccination-differentiated workplace measures under VoRT regime

Employers may adopt differentiated workplace measures for vaccinated and unvaccinated employees in their workforce (in consultation with unions where applicable):

• Testing frequency: Employers that voluntarily adopt the VoRT regime may subject unvaccinated employees to additional Covid-19 tests (compared to vaccinated employees), taking reference from MOH’s guidelines for the frequency of testing, i.e. twice a week for unvaccinated employees in selected sectors. Tests done under the Fast and Easy Testing (“FET”) or Rostered Routine Testing (RRT) regimes, which is either a Polymerase Chain Reaction (PCR) or supervised FET, will also count towards this requirement.
• Work and social events: Employers may require unvaccinated employees to undergo Pre-Event Testing (PET) before participating in workplace events, or implement reduced group sizes when unvaccinated employees participate in such events, especially those involving mask-off activities, in line with the prevailing MOH guidelines.
• Deployment: While employers may continue to deploy unvaccinated employees in higher risk activities with regular testing, they may choose to redeploy these employees to another job with lower risk of Covid-19 infection, commensurate with their experience and skills, as per existing redeployment policies. If there are no existing redeployment policies, the terms and conditions for redeployment should be mutually agreed between employers and employees.
• Others measures: Employers may implement other workplace measures, but must be prepared to justify to employees and/or the Government (e.g. in the event of a dispute) that such measures are reasonable and necessary for business operations and to better protect the health and safety of all employees. The employer and union (where applicable) may mutually agree on other vaccination-differentiated workplace measures.

Employers may require additional costs related to medically eligible but unvaccinated employees under VoRT regime to be borne by employee

Some costs are necessary and common for both vaccinated and unvaccinated employees and should be borne by employers.

In the case of costs that are required only for unvaccinated employees, employers can require medically eligible but unvaccinated employees (i.e. excluding employees who are medically ineligible for mRNA vaccines) to bear such additional costs:

• Covid-19 related expenses: Employers may recover from these employees Covid-19 related expenses (e.g. cost of test kits, costs of Stay-Home Notice (“SHN”) accommodation) that are incurred over and above those for vaccinated employees. These expenses can be recovered through salary deductions, or employers may require the employees to pay the service provider directly.
• Leave: Unvaccinated employees may be discharged later from treatment or may be served with longer periods of movement restrictions such as SHN, compared to vaccinated employees. Employers can require medically eligible but unvaccinated employees to serve the additional days using their leave entitlements or to go on no-pay leave if their leave entitlements have been exhausted.
• Medical benefits: Employers may exclude these employees from medical benefits associated with Covid-19 (e.g. insurance coverage).

Termination on basis of vaccination status alone prohibited

The Advisory states that under no circumstances should an employer terminate or threaten to terminate the service of an employee on the basis of vaccination status alone. Employers should also not place employees on no-pay leave for an extended duration without their mutual consent in writing. However, employers may exercise their right to contractually terminate employment if unvaccinated employees do not comply with reasonable vaccination-differentiated workplace measures.

Timeline for adopting and implementing VoRT regime

Employers intending to implement the VoRT regime as their company policy should only do so on or after 1 October 2021 so as to allow sufficient time for employees to be fully vaccinated. Employers should communicate clearly and in advance to affected employees and jobseekers on the vaccination-differentiated workplace measures and any associated costs to employees who are medically eligible but unvaccinated.

Monitoring and facilitating vaccination

Employers may request employees for their vaccination status for business purposes, e.g. for business continuity planning. Employers adopting the VoRT regime can further require employees to produce proof of vaccination. Employees and prospective employees who choose not to disclose their vaccination status may be treated as unvaccinated for the purposes of implementing vaccination-differentiated workplace measures and the bearing of costs.

Employers should urge all their medically eligible employees who have yet to be vaccinated to do so, and implement public education programmes on vaccine safety and efficacy for their employees. Employers should facilitate vaccination by granting paid time-off to employees for Covid-19 vaccination, and additional paid sick leave (beyond contractual or statutory requirements) in the rare event that the employee experiences a vaccine-related adverse event.

Employees are also encouraged to get vaccinated as soon as possible as doing so protects fellow co-workers who are medically ineligible for vaccination.

Reference materials

The updated Advisory and FAQs are available on the MOM website www.mom.gov.sg.

Further information

Allen & Gledhill has a Covid-19 Resource Centre on our website www.allenandgledhill.com that contains knowhow and materials on legal and regulatory aspects of the Covid-19 crisis.

In addition, we have a cross-disciplinary Covid-19 Legal Task Force consisting of Partners across various practice areas to provide rapid assistance. Should you have any queries, please do not hesitate to get in touch with us at covid19taskforce@allenandgledhill.com.