To tackle the COVID-19 outbreak, the Hong Kong government has laid out a series of policies and recommendations aimed at reducing traffic and face-to-face communication within Hong Kong or with virus-hit neighbours such as the closure of cross-border checkpoints, imposing mandatory quarantine on people entering Hong Kong from Mainland China, etc. Aside from asking government employees (except for those providing emergency services) to work from home, the government has further appealed to private sector organisations to make similar arrangements as far as practicable.
With the slowdown of traffic and business as a whole, employers in Hong Kong must bear in mind their obligations and potential liabilities amid all this, and consider what their human resources teams can do to enhance management and governance.
General Obligations and Liabilities of Employers
In general, employers should continue to pay wages to employees even if they are prevented from reporting to work due to the mandatory government measures. In Hong Kong, an employer is not permitted to make any deduction from its employees’ wages unless the deduction falls within one of the statutory exceptions1, one of which is 'absence from work'. However, it is highly unlikely that an employee’s inability to report to work solely attributable to the mandatory measures will qualify as 'absence from work'.
Employers can be liable to pay sickness allowance to employees if conditions under the Employment Ordinance are met, or if the employees’ unfitness for work is on account of any work-related injury or occupational disease, in accordance with the Employees’ Compensation Ordinance (the “ECO”). As SARS has been listed as an 'occupational disease', it is likely that COVID-19 will also be similarly recognised soon. But this may only apply to occupations involving close and frequent contacts with sources of infection by reason of employment such as healthcare workers.
Last but not least, employers should be aware of their common law and statutory obligation to ensure the safety and health at work of all employees, so far as reasonably practicable2. For office workers, this is largely being addressed by work from home arrangements. Employers should follow guidelines and health advisories and bring them to the employees’ attention, together with clear communications on the relevant contingent plans when there are confirmed cases at the work place or among any employee’s close family member.
As businesses, the considerations are inherently economical. Whilst measures are taken to ensure the health and safety of employees, what other ways are there for employers to weather the resulting business challenges?
Some employers are asking employees to take no pay leave. Are they entitled to do so or will there be any consequences of doing so? The general position is that an employer may not direct an employee to take no pay leave unless consent has been obtained from the employee. In practice, employers are recommended to conduct prior consultation and frank dialogues with employees, taking into consideration the needs of individual employees, so as to reach a mutually-agreeable arrangement and maintain harmonious work relations.
Where no pay leave arrangements have been agreed upon, employers should pay attention to how 'lay-off' is defined under the Employment Ordinance to see if the no pay leave arrangement results in the employee qualifying for a severance payment.
In addition to no pay leave, employers are entitled to direct the employees to take their annual leave, provided that at least 14 days’ prior notice in writing has been given, unless a shorter period of notice is agreed by the parties.
Data Privacy Issues
Employers should be aware that various data protection principles under the Personal Data (Privacy) Ordinance will apply to the medical history of the employees, such as results obtained from medical examinations and temperature testing. Such data must be collected by means which are lawful and fair in the circumstances and employees should be informed beforehand as to whether it is obligatory or voluntary for them to go through the examination or testing, the purpose for which the data is to be used, the classes of person to whom the data may be transferred etc. In general, employers should keep their employees promptly informed of the measures being undertaken, which should be proportionate to the degree of risks faced in the office.
Furthermore, when any employee (or any family member of such employee) is confirmed to have contracted COVID-19, great care should be taken not to breach any of the data protection principles, including the rule against unauthorised or accidental access. Employers should obtain the affected employee's consent before releasing any information relating to his or her medical history or family background.
The infection or suspected infection of COVID-19 falls within the definition of 'disability' under the Disability Discrimination Ordinance. An employer should not treat any employee who has contracted the virus less favourably than it would treat someone who is not suffering from it. This means that the employer should continue to pay the infected employee, and should not dismiss the employee solely because he or she had contracted or has been suspected to have contracted COVID-19.
Employers should strike a balance between the duty to ensure health and safety of all employees and the obligation not to discriminate any particular group. All measures to be undertaken should be proportionate to the risks faced in the office at the moment of implementation.
1. Section 32 of the Employment Ordinance (Cap. 57)
2. Section 6(1) of the Occupational Safety and Health Ordinance (Cap. 509)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.