Coronavirus - Employment law update - Hong Kong

• Hong Kong

• Coronavirus - Country overview
• Coronavirus - Workforce issues
• Employment law

27-02-2020

As we complete the first month after the lunar new year of dealing with CoVID-19 (formerly the novel coronavirus), many clients are taking stock of the situation by assessing their business continuity plans and obligations to staff.

So where are we now? Briefly, as of 27 February, there are more than 82,164 confirmed cases worldwide, which have resulted in more than 2,801 deaths. There have been further outbreaks in South Korea, Italy, Iran and Singapore. Hong Kong schools will remain closed until 20 April. The Hong Kong government has announced that it will adopt special work arrangements for most of its employees to minimise social contact and only emergency and essential public services will be provided until 1 March. Many businesses have suspended their operations and/or adopted work from home arrangements at the encouragement of the government. Some businesses have adopted cost-cutting measures including redundancies, unpaid leave, reduced working hours and pay cuts citing reduced business activities.

In this FAQ we will address some of the more common questions raised by businesses and employers in relation to the CoVID-19 outbreak.

Q1: What laws should employers be aware of? What should employers do?

A1: Under common law and the Occupational Safety and Health Ordinance, employers are under a duty to ensure the safety and health of their employees. Employers are required to provide a working environment that is, so far as is practicable, safe and without risks to health. Employers may have reporting obligations under the Employees’ Compensation Ordinance.

In light of the CoVID-19 situation in Hong Kong, employers should consider providing personal protection equipment to their employees, such as face masks, alcohol wipes, hand sanitizers and other cleaning apparatus. Stronger equipment such as face shields and protective eye shields may be necessary for employees who are more at risk of exposure to CoVID-19, for example, employees who are in contact with medical patients, the elderly, children or visitors from high risk regions. Employers should also put in place policies which will minimize the risk of employees catching the coronavirus in the workplace, for example, health screening questionnaires for staff members returning to work from overseas and China and delaying or cancelling non-essential business travel and meetings.

Q2: Are there any laws requiring public health bodies to be notified if any employees are suspected to be ill with the CoVID-19?

A2: The reporting obligation is imposed on medical practitioners rather than employers. Thus there is no obligation on employers to notify public health authorities if an employee is suspected or confirmed to be infected with the CoVID-19. However, employers are expected to cooperate with the health authorities if an employee is suspected or confirmed to be infected with the CoVID-19 in implementing infection control measures.

In addition, when an employee contracts CoVID-19 at work, the employer should report this to the Labour Department. Please see Q11 below.

Q3: Are there any privacy or confidentiality issues that employers should consider?

A3: Employers have to observe the Personal Data (Privacy) Ordinance. For example, if they collect information from their employees in a questionnaire before the employee returns to work from travel outside Hong Kong, employers must ensure that the employees have been informed of the purpose for the collection of the information, must not keep the information for an excessive period of time, and must not use such information for other purposes.

Q4: Can we require staff to work flexibly? This could include redeploying staff to different locations/working from home/ performing different duties.

A4: The legal answer is to check the employment contract, as unilateral variation is generally not permitted. In emergency situations, however, and in particular where the government has encouraged employers to arrange for working from home, this is unlikely to be an issue. Where there is a health issue (such as an employee has been exposed to the coronavirus) you can direct the employee to work remotely for the protection of other staff.

Q5: If staff request to work flexibly because they are having difficulty attending work due to the need to care for dependants, do such requests have to be accommodated?

A5: With schools in Hong Kong closed and children at home, many families have had their usual routines disrupted. Employers should be aware of their obligations under the Family Status Discrimination Ordinance, which prohibits discrimination because of an employee’s family status (caring responsibilities). Employers should consider that whether the employee’s request to work from home can be reasonably accommodated. If not, the employer should be prepared to justify why it is a genuine occupational requirement for the employee to attend the workplace.

Q6: Can employers require staff to take annual leave, for example due to closure of the office/decreased output?

A6: The Employment Ordinance allows employers to designate the dates on which employees take annual leave so long as the employer gives 14 days’ advance notice.

Q7: Can employers ask staff to not go to work if the business is slow due to lack of activity?

A7: Yes, but that does not automatically mean that they shouldn’t be paid.

If the employee is paid monthly, then the employer may not require the employee to take unpaid leave without the employee’s consent. Note that many employers have asked and obtained consent for flexible periods of unpaid leave that allow business continuity and reduce the financial sacrifice from staff.

The situation is more complicated for staff whose remuneration depends on the amount of work being provided by the employer. If the employment contract does not provide for the minimum amount of work to be provided, the employer is under no obligation to provide work in any particular period. However, if the employer does not provide work in:

• half of the total number of normal working days in four consecutive weeks; or
• one-third of the total number of normal working days in 26 consecutive weeks;

and that the employee’s normal salary is not paid, then the employer will be taken to have laid off the employee and severance will be payable.

Q8: If staff are sick due to CoVID-19 and unable to work, are they entitled to pay?

A8: Yes. Employees are entitled to sickness allowance under the Employment Ordinance. They must be on sick leave for at least four consecutive days and have accumulated statutory sick leave. Sickness allowance is payable at the rate of four-fifths of the employee’s average daily wages. If the employer’s sick leave policy is more generous, that should apply.

Q9: If staff are quarantined but not sick, are they entitled to pay?

A9: In mid-February, the Hong Kong Government imposed a 14-day mandatory quarantine on all people entering Hong Kong from the mainland. The Department of Health will issue a medical certificate for all persons subject to this mandatory quarantine, entitling them to sickness allowance. The Government has encouraged employers to be flexible and allow such staff to work from home if possible. In that case, the employee is entitled to his or her ordinary remuneration.

Q10: Can employers require staff to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

A10: Yes, with limits. Employers are obliged to maintain a safe place of work, and cannot allow an employee who is infected (or who might be infected) into the workplace. It is acceptable to require employees to report if they are infected or have been exposed. However, such information should be used for only maintaining the health and safety of the workplace and not for any other purpose. The collection of the information by the employer should not be excessive (e.g. it is not necessary to collect information concerning how the employee came into contact with a confirmed/suspected case) and the information should not be kept for an excessive period.

Q11: What if an employee contracts the coronavirus while at work?

Some diseases, including SARS, are considered an “occupational disease”. This means that an employee who contracts these diseases will be entitled to compensation under the Employees' Compensation Ordinance (ECO). The ECO also provides for compensation in cases of accidents and injury at work. CoVID-19 is not currently on the list of occupational diseases, and the Labour Department has announced that it is considering amending the ECO to include it.

In the meantime, the Labour Department has indicated that an employee who contracts the coronavirus at work should “inform his employer immediately so that his employer can notify the Labour Department of the injury”. The Labour Department encourages employees to approach the Employees' Compensation Division of the Labour Department directly if there is any doubt.

Employers therefore should treat employees who contract CoVID-19 at work as if the employee has been injured, which in turn requires the employer to inform the Labour Department. We recommend that employers check with their insurers to confirm that they are covered and if the insurer will impose any additional requirements.

Q12: Where can guidance from the Hong Kong government and international bodies be found and monitored?

A12: The Hong Kong Government’s Centre for Health Protection’s website provides latest official information on CoVID-19 in Hong Kong: https://www.chp.gov.hk/en/features/102465.html

The World Health Organization’s information on the CoVID-19 may be found here: https://www.who.int/emergencies/diseases/novel-coronavirus-2019