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Government responds to further proposals on the Employment (Amendment) Bill

  • Hong Kong
  • Employment law - HR E-Brief

05-05-2022

On 25 February 2022, the Hong Kong government gazetted the Employment (Amendment) Bill 2022 (the “Bill”), which provides guidance on employment issues resulting from changes to the government’s COVID-19 policy.

In this second briefing in our two-part series, we set out the main points in the government’s response last month to further proposals from the Bills Committee on the Bill. For more information on the key features of the Bill, please refer to part 1 of our briefing here.

Classification of “sickness days”

The Bill does not provide for a specified number of sickness days for an employee who has contracted COVID-19 or is classified as a close contact. The government clarified that the number of days of quarantine/isolation (and accordingly the number of sickness days) is to be determined by the health authority as set out in the Isolation Order or the Quarantine Order.

Employees who have contracted COVID-19 or are a close contact can leave isolation or quarantine earlier than the specified period and accordingly return to their workplace, provided they have: 1) received at least 2 doses of COVID-19 vaccines, and 2) obtained negative results during rapid antigen tests on both the sixth and seventh day after testing positive.

Payment of sickness allowance

No sickness allowance will be payable by an employer in respect of a day on which the employee would not have worked even if he/she had not been sick, for example if an employee works in premises where business operations have been suspended. That being said, employers who request employees to take unpaid leave due to special circumstances should notify and communicate with the employees in advance.

Scope of employer’s power to terminate employment of unvaccinated employees

In addressing questions about the Bill’s potential contravention of the Disability Discrimination Ordinance, the government clarified that the Bill does not require an employer to dismiss employees who failed to produce proof of vaccination, and that an employer is not permitted to terminate an employment contract if such employer has not fully complied with all the requirements of a “legitimate vaccination request” under the Bill.

Protection of employees complying with quarantine/isolation requirements under Cap 599

In addition to payment of sickness allowance and legal liabilities for dismissal of absent employees complying with COVID-19 measures under Cap 599 (which we discussed in part 1 of our briefing), an employee may lodge a claim against their employer for remedies of unlawful and unreasonable dismissal. The government also provided that summary dismissal due to the employee’s serious misconduct is an exception to the general prohibition against dismissing employees who are absent from work due to compliance with Cap 599 requirements.

Implementation of the Bill

A specific implementation timeframe for the Bill has yet to be announced. However, the government stated that it will fully cooperate with the Legislative Council in reviewing the Bill “with a view to early completion”, and therefore we anticipate the enactment of the Bill in the near future. Further, the government clarified that the proposed amendments will not have retrospective effect. As such, the amendments will only affect employees subject to COVID-19 restriction measures after the effective date on which the Bill becomes law. A guide introducing the amendments will be published alongside the enacted legislation to facilitate compliance by employers and employees.