South Korea: Q&A - Employer COVID-19 Vaccination Policies (Updated)
*Disclaimer: Given the speed at which new laws, regulations and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*
Has vaccination been made mandatory in your jurisdiction?
As of November 2021, COVID vaccination has not been made mandatory in Korea. However, the government has been encouraging vaccination to have more people get fully vaccinated. As of early November 2021, over 75% of entire population has been fully vaccinated in Korea.
Can an employer require employees to get the COVID vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
As circumstances currently stand in Korea, an employer would likely only be able to request that employees get a COVID vaccination on a voluntary basis. Therefore, an employer’s generally requiring or mandating employees to get a COVID vaccination would likely be subject to challenge.
That said, however, an employer does have a general duty of care to maintain and promote health and safety of its employees at the workplace. Therefore, an employer may likely be justified in requiring employees to be vaccinated as a condition for returning to the workplace for the purposes of maintaining health and safety at the workplace, if there are alternative working arrangements (e.g., work from home or other forms of remote work) available that allows employees to opt for working remotely more or less the same way as physically coming to the workplace.
Can employers require the wearing of masks in the workplace?
As circumstances currently stand in Korea, people are obligated to wear masks indoors, unless certain exemptions (e.g., when staying at a personal space like home or personal vehicle, when staying at a segregated space like personal office, when eating or drinking, when washing face or brushing teeth, etc.) apply that render wearing of masks difficult. Therefore, an employer can require its employees to wear masks at the workplace.
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?
As circumstances currently stand in Korea, employees can refuse COVID vaccination and an employer would unlikely be justified in generally requiring or mandating COVID vaccination.
That said, an employer does have a general duty of care to maintain and promote healthy and safe working environment. To that end, the Ministry of Employment and Labor (MOEL) suggests in its Response Guidance to Prevent and Control the Spread of COVID-10 that an employer should monitor and screen employees and visitors coming to the workplace for signs of COVID and, where there is a reasonable suspicion that certain employees and visitors are infected with COVID (e.g., a fever of 37.5 degrees Celsius or higher, respiratory symptoms including a cough, sore throat, etc. or contact with confirmed cases of COVID), refusing their entry into the workplace would be justified.
Further, in line with the government’s vaccination policy to incentivize (as opposed to require or mandate) people to get fully vaccinated, an employer may consider providing incentives to employees to induce getting vaccination.
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?
Under current rules, since a mandate to get vaccinated would likely be subject to challenge, termination of an employee solely for his/her refusal to comply with such mandate would likely be held invalid.
What benefits or accommodations do employers have to make for vaccinated employees?
There is no particular benefits or accommodations that an employer is obligated to make for vaccinated employees.
That said, in order to incentivize people to get a COVID vaccine, the government does highly recommend that employers give 1-2 days of paid leave to employees getting a COVID vaccination. Accordingly, many companies in Korea do grant paid leave to employees who are getting vaccinated, around the timing of relevant vaccination.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
While vaccinated employees may request that they are not placed in the vicinity with unvaccinated employees, but an employer is not obligated or otherwise bound by such request to have unvaccinated employees to stay away from those vaccinated employees. The employer has a general authority and power over personnel matters and employees, regardless of their vaccination status, would be subject to the employer’s exercise of such authority and power over personnel matters, unless that lies far outside the scope of reasonableness and poses significant disadvantages on the relevant employees.
In your country, are employers required to provide paid leave for employees to get vaccinated?
As circumstances currently stand in Korea, an employer is not statutorily obligated or otherwise required to provide paid leave for employees to get vaccinated. However, since the government is highly recommending that employers provide 1-2 days of paid leave to employees who plan on getting a COVID vaccine, many companies in Korea do grant paid leave in the form of vaccination leave in practice.
Contributors
Bae, Kim & Lee
HC Elizabeth Yu, hc.elizabeth.yu@bkl.co.kr
Chikyu Sim, chikyu.sim@bkl.co.kr