She has worked for the Hongkonger in his 60s for two years. She says he is sometimes grumpy and intimidating when he tells her to get vaccinated, and cannot understand her concerns about the safety of the vaccines and their possible side effects.

Now she is worried that if she does not do as he says, he will terminate her contract which ends in October.

“I’m not ready to lose my job and leave Hong Kong just because I’m not vaccinated,” she says. “It is discrimination.”

Hong Kong’s roll-out of its voluntary vaccination programme in February has stirred ethical and legal debates about discrimination against those who do not get vaccinated. Adding to the controversy are recent moves to create a “vaccine bubble” allowing freer movement for those who have been vaccinated while restrictions remain for the rest.

Two vaccines – the German-made BioNTech and the Chinese-produced Sinovac – are available free of charge to all Hong Kong residents, but people remain divided on whether to get their jabs.

While some have been eager to get themselves and their family members vaccinated for protection and to be able to travel, or out of social responsibility, others question the vaccines’ safety or do not trust the government.

Experts warn that “vaccine hesitancy” will keep Hong Kong from reaching the goal of vaccinating 70 per cent of the population to achieve herd immunity against the coronavirus.

As of Friday, 1.04 million people had received their first shot, and about 623,800 people had got their second dose, accounting for around 8 per cent of the city’s total population of about 7.5 million.

Now some who are not vaccinated have begun complaining about facing discrimination and unfair treatment at the workplace, as well as at shops and restaurants.

To encourage more people to get inoculated, the government launched the vaccine bubble plan on April 29, allowing food and drink businesses to ease social-distancing restrictions if their staff and customers have been vaccinated.

Restaurants are allowed to seat up to eight people per table and have dine-in services until 2am if their customers have received at least one vaccine shot, and their staff have been fully vaccinated. If customers are not vaccinated but workers have received at least one dose, restaurants are allowed to seat up to six people per table and operate dine-in services until midnight.

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Restaurants can choose to continue with the previous rule of having up to four people per table, with dine-in services ending at 10pm, provided their staff are tested for the virus fortnightly and customers either use the “Leave Home Safe” contact-tracing app or provide their personal details.

Those that do not want to be subject to the staff-testing and contact-tracing rules can continue serving up to two people per table and ending dine-in services at 6pm.

Bars and nightclubs which have been closed for five months are allowed to reopen under the vaccine bubble scheme if their staff and customers have received at least one vaccine dose.

Staff seeking exemption from vaccination on medical grounds must fill a declaration form stating their reason and provide a medical certificate.

No jab, no job?

Ho Hung-hing, organising secretary of the Catering and Hotel Industries Employees General Union which has more than 700 members, says a few catering sector employees complained that their employers were forcing them to get vaccinated and told them not to return to work until they had their jabs.

He says many workers in the sector are older, with medical conditions and not fit for vaccination. Although the vaccine bubble exempts those with medical reasons to avoid vaccination, he says it is not known whether these workers can obtain a valid certificate and who should pay for it.

“The vaccine bubble, in a way, forces employers to compel their employees to get vaccinated,” he says. “Workers are experiencing vaccine discrimination or vaccine bullying.”

This could lead to more employment disputes, and he is worried that being vaccinated may become a prerequisite for getting a job.

On April 30, a day after a Filipino domestic worker was confirmed to be the first untraceable case of a mutated strain of Covid-19 contracted locally, the government announced that vaccination would be made mandatory for more than 398,000 domestic workers before they renew their contracts as well as those who want to come to Hong Kong.

This was met with cries of discrimination among domestic helpers, with both the Philippine and Indonesian consulates weighing in. Following the outcry, Chief Executive Carrie Lam Cheng Yuet-ngor said on Tuesday the new policy would be suspended and reviewed.

Shiela Tebia-Bonifacio, 37, chairwoman of Gabriela Hong Kong, an organisation supporting Filipinos in the city, says about half its 100 members have received their jabs, and the rest have medical conditions or concerns about safety of the vaccines.

Tebia-Bonifacio, also a domestic helper and who has worked in Hong Kong for 14 years, says she has had both jabs to protect herself, but those not yet vaccinated are worried about losing their jobs.

“We are not against vaccination,” she says. “But it is discrimination and stigmatisation to make it mandatory only for domestic helpers and make it a requirement for work.”

Ethical or legal?

The Equal Opportunities Commission (EOC), the city’s anti-discrimination watchdog, has received one complaint and more than 30 inquiries related to vaccination as of Monday.

It says once the vaccine bubble scheme is implemented, non-vaccinated people may face tighter pandemic prevention measures or arrangements, and if those are reasonable to protect public health, they may not be discriminatory. 

But if an employer requires all employees to be vaccinated or else be laid off, it may constitute indirect discrimination against those unsuitable for vaccination, such as people with serious illnesses or pregnant women. The employer will have to provide reasonable grounds to support insisting on vaccination, the watchdog says.

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Dr Calvin Ho Wai-loon, associate professor of law at the University of Hong Kong (HKU) who studies biomedical law and ethics, says the government’s vaccine bubble scheme itself is reasonable, as it does not force staff or customers to get vaccinated if their health conditions are an issue.

But problems may arise when the policy is implemented by businesses, for example when some employers force their staff to get vaccinated.

“The policy itself is ethically justified and reasonable, but there still may be gaps which we need to be mindful of, and have adequate safeguards [to protect] individuals, particularly vulnerable employees,” he says.

He says the government should help those affected, including establishing an avenue to complain about problems they encounter.

Duncan Abate, a Hong Kong-based partner of global law firm Mayer Brown, who specialises in employment-related laws, says whether it is legal for employers to require employees to get vaccinated depends on the businesses and their reasons.

Under the vaccine bubble scheme, he says, it is reasonable for catering sector businesses to make such a request, as having vaccinated staff is key to improving business by operating longer dine-in services and having more patrons on the premises.

But he adds that for most of other sectors not included in the vaccine bubble, it is generally unreasonable for employers to require staff to get vaccinated, and employees can complain to EOC for disability discrimination or the Labour Department for breach of contract.

Questions in other countries too

Outside Hong Kong, political and ethical debates on vaccine discrimination and inequality are gaining momentum as countries roll out inoculation drives.

In Israel, where more than 50 per cent of people have been fully vaccinated, one of the highest rates globally, only those who are fully vaccinated are allowed to attend concerts, dine out, go to gyms and travel.

It has also made vaccination mandatory for all employees in the health care system, and those who are not vaccinated will be transferred to jobs that do not involve contact with high-risk patients.

Belgium’s equality centre Unia warned earlier this month that making access to goods or services conditional on vaccination could have the same result as compulsory vaccination, and refusing access to non-vaccinated people could count as discriminatory.

Meanwhile, unequal access to vaccines in some countries is proving detrimental to the poor. India, struggling with a soaring number of Covid-19 infections, also has a shortage of vaccine supplies.

HKU’s Ho, who is co-director of the university’s Centre for Medical Ethics and Law, says when authorities make health-related policies, a number of principles should be addressed, including protecting and promoting human well-being, equal respect, equity, reciprocity and legitimacy.

“It is a question of balancing public good with individual liberties in a way that we meet the objectives of public good, but least infringe on the person,” he says.

Hong Kong has so far done well in this area, he says, but the authorities can do better in explaining its policies, understanding people’s concerns and engaging those affected.

Despite the concerns over vaccine discrimination, some employers are mindful of the effect on their workers.

Simon Wong Kit-lung, who runs 39 eateries under the LH Group, says despite the vaccine bubble scheme, his restaurants are still operating as before, including suspending dine-in services at 10pm and serving up to four diners per table.

He has about 800 employees and only about 10 per cent have been vaccinated. Rather than force the rest to get their jabs, he has explained the benefits of vaccination to his employees, and offered a day off for those who go to get vaccinated.

He says staying out of the vaccine bubble scheme will impact his business, but he prefers to let his employees decide whether to get their jabs.

“We respect everyone’s personal choices, and we don’t want them to feel pressured to get vaccinated, which is a big decision to make for individuals,” he says.