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Hong Kong proposes new employment legislation regarding vaccination requirements and COVID-19 movement restrictions

  • Hong Kong
  • Employment law - HR E-Brief

05-05-2022

The Hong Kong government has mandated vaccines in many workplaces and imposed stringent mandatory testing and quarantine requirements affecting employees’ ability to attend the office. There has been considerable uncertainty among employers and employees on how compliance with these requirements may affect their respective rights and obligations under current employment legislation in Hong Kong. Proposed legislation should provide more certainty on these issues.

On 25 February 2022, the Hong Kong government gazetted the Employment (Amendment) Bill 2022 (the “Bill”). The new Bill provides for much needed clarity on certain employment issues that have arisen in light of the government’s COVID-19 policy, and comes one day after the government’s introduction of a vaccine pass requirement (“Vaccine Pass”) for entry to public premises takes effect (for more information on the Vaccine Pass, please refer to our previous briefing here).

We set out below the key features, implementation timeline and what the Bill will mean for both employers and employees in Hong Kong if enacted.

Key features

1. Employers may direct their employees to take a vaccine and may dismiss their employees if they refuse to be vaccinated within 56 days

An employee must comply with a “legitimate vaccination request” from their employer. A vaccination request is “legitimate” where:

1) the place of work is a premises or a public transport carrier to which the Vaccine Pass applies;

2) the government otherwise requires or recommends vaccination for employees who perform a certain type of work; or

3) the employer reasonably believes that if the employee is infected, those who come into contact with him/her will be at risk as well.

Under the Vaccine Pass, restaurants, shopping malls, supermarkets and a number of other specified premises require anyone attending or entering into the premises to prove that they have received at least one dose of an applicable COVID-19 vaccine. Employees working in such specified premises will need to scan the premises’ LeaveHomeSafe QR code and have their proof of vaccination or exemption QR code scanned by staff in order to enter the premises.

A vaccination request by an employer will not be legitimate if issued to an employee who is pregnant or breastfeeding, holds a special medical exemption certificate or holds a valid proof of discharge of recovery confirming that the employee had contracted COVID-19 not earlier than 6 months prior to the date the employer’s vaccination request was made.

2. Absence from work due to compliance with COVID-19 restriction policies deemed as valid “sickness days” under EO

Another area of uncertainty has been how employers should treat employees’ enforced absence from the office, for example if complying with a statutory restriction, quarantine or isolation order. Currently, the government is empowered to issue compulsory restriction-testing declarations which restrict people who are in specified premises from leaving until they have tested negative. The restriction may last several days. Under Cap 599A, the government may place someone who tests positive for COVID-19 under isolation in a designated place, and their close contacts under mandatory quarantine.

An employee’s absence from work due to compliance with a statutory restriction on movement will be deemed as “sickness days” under the EO, and accordingly such employee will be able to receive sickness allowance subject to fulfilment of the relevant criteria under the EO. The statutory restrictions to which the amendment will apply include where employees:

1) are placed under mandatory quarantine or isolation (section 29(1) and 29(2) of the Prevention and Control of Disease Regulation (Cap 599A));

2) are subject to a compulsory testing order (section 13(1) and 16(1) of the Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (Cap 599J) (“Compulsory Testing Regulation”)); or

3) cannot leave a restricted premises (section 19C(1) of the Compulsory Testing Regulation).

Any periods where employees are subject to quarantine or testing restrictions as a result of returning from overseas or if the employee is subject to a Cap 599 requirement due to the employee’s serious and wilful misconduct will not be treated as “Sickness days” under the amended legislation.

An employee claiming for “sickness days” in the circumstances above must produce proof (either in a document issued by a public officer or any person on behalf of the government or in an electronic version accessible in a manner prescribed by the government), which identifies the employee concerned and the type of restriction imposed. The specific number of sickness days to be taken by the employee is to be determined by reference to the number of days of isolation/quarantine imposed by the health authority.

Implications for employers

Employers will need to be prepared to pay sickness allowance at the rate of 4/5 of the employer’s daily average wages to an employee who is absent due to compliance with relevant COVID-19 measures.

An employer that terminates the contract of an employee who is absent from work due to their compliance with COVID-19 measures is liable to prosecution and, upon conviction, to a fine of HK$100,000, in addition to paying the dismissed employee the compensation he/she is entitled to.

These proposed amendments are expected only to be temporary. The Bill provides that they will be repealed when the pandemic is under control and vaccination is no longer a matter of grave public health concern.

The government has also made it clear that the proposed amendments do not have retrospective effect. Thus, the amendments will only affect employees subject to COVID-19 restriction measures after their effective date. There is no specific timeframe for the legislation to become law.

Next steps

The Bill should provide more certainty in respect of a few of the difficult issues that have arisen between employers and employees as a result of employees’ enforced absences from the office in compliance with statutory restrictions imposed by the government as part of its COVID-19 response measures.

For the full version of the Employment (Amendment) Bill 2022, please click here.