With the situation surrounding the 2019 Novel Coronavirus (COVID-19) rapidly changing, multinational companies with operations in Hong Kong should be aware of how to handle challenging employment issues during this time. This LawFlash provides insight based on existing laws and legislation in Hong Kong, including previous guidelines issued by the Hong Kong Labour Department on labor-related matters arising from the Severe Acute Respiratory Syndrome (SARS) outbreak in 2003. Companies with employees in Hong Kong should consult this guidance in responding to COVID-19.
If an employee has been diagnosed with COVID-19, the employer should grant him/her sick leave. The employee will be entitled to receive pay during the period of sick leave if the sick leave is supported by an appropriate medical certificate and the employee has accumulated the number of paid sickness days taken. The employer may not terminate the employee’s employment during the paid sick leave period—such termination can be prosecuted as an offence under the Employment Ordinance. The same applies to employees who are subject to an isolation order or requirement of the Hong Kong Director of Health to undergo daily medical checkups; the Hong Kong Department of Health will issue sick leave certificates to such employees.
The Occupational Safety and Health Ordinance imposes duties on employers to ensure the safety and health of employees in the workplace. Should any employee contract COVID-19, the employer must take measures to ensure the workplace is safe for other employees, including by cleansing and disinfecting the work premises and its ventilation system. The employer may take precautionary measures, such as requesting that all employees work from home or closing the workplace if the circumstances so require. The employer should also identify the risk of other employees becoming infected and consider its communication strategy with regard to disseminating information to its employees. The employer may consider whether to encourage employees who have social contact with the infected employee to stay at home, away from the workplace, to reduce the risk of infecting others.
An employer may request that the affected employee stay away from the workplace or may take precautionary measures, such as requesting that all employees work from home or closing the workplace if the circumstances require.
If an employer asks an employee to stay away from the workplace, this would constitute a suspension of service by the employer and would generally require an express power to do so in the employment contract. The employer should consider and discuss with its employees whether it is possible for them to carry out their duties remotely. However, regardless of whether an employee is able to continue to carry out his/her duties at home, the employer should continue to pay the employee wages and other benefits in accordance with the Employment Ordinance and his/her employment contract.
The company should take precautionary measures in workplaces to minimize the risk of its employees becoming infected with COVID-19. It should maintain good environmental hygiene and good indoor ventilation and remind its employees to maintain good personal hygiene.
To ensure that the company is equipped with the core capacities to prevent, detect, and respond quickly and in a coordinated manner to COVID-19, the company should consider formulating a contingency and response plan in case of any detection of COVID-19 that may have significant impact on the health and safety of the workplace and its employees.
The company should consider requesting the travel history of its employees in the last 14 days and encourage its employees to refrain from traveling to areas where the transmission of COVID-19 has occurred. However, the company may only rely on the voluntary disclosure of its employees and should refrain from taking any disciplinary action in cases of noncompliance without seeking legal advice. The company should also remind its employees to strictly follow any government-mandated precautionary measures (such as self-quarantine) upon returning to Hong Kong from areas where the transmission of COVID-19 has occurred.
Further, under the Occupiers’ Liability Ordinance, an occupier owes a common duty of care toward all visitors on its premises that they will be reasonably safe in using the premises. Accordingly, the company should notify its visitors (including clients, delivery persons, service providers, etc.) of any health and safety hazards, particularly if there are any suspected or confirmed cases of COVID-19 in or around the premises.
The company should also enforce appropriate measures toward third-party visitors, such as conducting temperature checks, providing face masks, or refusing entry where reasonably practicable.
If contraction of COVID-19 arises out of, and in the course of, employment, an employee may be able to recover compensation under the Employees’ Compensation Ordinance (ECO).
An employer should therefore consider whether it is possible for the employee to work from home, taking into account the nature of the employee’s job duties, the plausibility of creating a roster arrangement between employees, and other factors.
It should be noted that there is no legal obligation on employers to allow employees to work from home. Accordingly, if it is not plausible for an employee to work from home and the employee refuses to attend work due to concerns of COVID-19 exposure, the employer may discuss with the employee whether he/she is willing to take annual leave/unpaid leave during his/her period of absence.
As an example, if an employer encourages all of its employees to take unpaid leave for a specific period of time, the employer should note that any such arrangement can only be conducted on a voluntary basis and in accordance with the terms of the employees’ employment contracts. The employer has no power to compel an employee to take unpaid annual leave.
However, if an employer does not or cannot open for business, and an employee is unable to continue to carry out his/her duties remotely due to his/her job nature, the employer is legally required to continue to remunerate the employee in accordance with the law and the employment contract.
An employer may direct an employee who has returned from the PRC within the last 14 days to stay away from work to ensure the safety and health of other employees in the workplace.
During the 2003 outbreak of SARS, the Equal Opportunities Commission (EO Commission) advised that there is no unlawful discrimination under the Disability Discrimination Ordinance or the Family Status Discrimination Ordinance if the employer asks employees with family members/relatives infected with the virus or employees displaying symptoms of the virus to stay at home and take paid leave. However, the EO Commission advised that it is discriminatory if an employer dismisses or subjects to detriment an employee who has (or might have) the disease, or who has a family member or associate who has (or might have) the disease.
Effective February 8 and initially for a period of three months, the Hong Kong government imposed a mandatory 14-day quarantine on all new arrivals from mainland China, regardless of nationality. Violators face fines of $3,200 and prison time of up to six months. Anyone, including employers not subject to quarantine, providing false or misleading information to the authorities in relation to the same is also potentially liable for the same criminal liability.
While SARS has been listed as an occupational disease under the ECO, COVID-19 is not currently one of the compensable occupational diseases prescribed thereunder. However, the ECO provides that an employee shall have the right to recover compensation under the ECO in respect of a “disease” that is not a prescribed occupational disease if the “disease” is a personal injury by an accident arising out of and in the course of employment.
According to previous guidelines issued by the Labour Department in relation to SARS, in handling nonprescribed occupational diseases, the Labour Department will assess whether the employee concerned has accidentally contracted the disease arising out of and in the course of employment based on medical records, relevant information of the case, and the provisions of the ECO. In principle, if an employee has contracted the disease arising out of and in the course of employment, he or she should be covered by the ECO. However, the final determination depends on the factual circumstances of each case.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
K Lesli Ligorner