Amid the current outbreak of Covid-19 and as authorities ramp up preparations to handle possible contagion, so too must employers. Hong Kong is no stranger to handling virus outbreaks. Experience says taking preventative measures, remaining vigilant and preparation are key. Below are some Q&As on an employer's obligations in dealing with a Novel Coronavirus outbreak.

1. What are an employer's main legal obligations?

The main areas of an employer's legal liability in the workplace include:

  • Ensuring so far as reasonably practicable the workplace health and safety of employees (i.e. obligation under the Occupational Safety and Health Ordinance (OSHO) and common law duty of care);
  • Complying with obligations under the contract of employment and the Employment Ordinance (e.g. continuing to pay wages, ensuring the employee works within the terms of the contract of employment);
  • Complying with the Disability Discrimination Ordinance; and
  • Complying with the Employees' Compensation Ordinance (e.g. having appropriate insurance and timely reporting of illnesses/death).

2. Do I need to have in place a workplace plan to deal with the Novel Coronavirus?

There is no legal obligation in Hong Kong on an employer to specifically have a workplace Novel Coronavirus response plan. However, the OSHO requires all employers in Hong Kong to, so far as reasonably practicable, ensure the safety and health at work of all their employees. One reasonably practicable step an employer could take is to develop a plan dealing with workplace health and safety issues associated with the Novel Coronavirus.

We recommend that employers prepare a detailed plan (if one is not already in place) and implement it.

3. What should a workplace Novel Coronavirus response plan cover?

The plan should deal with the following:

Before an outbreak

  • Preventive measures. The Centre for Health Protection issued Health Advice on Prevention of Severe Respiratory Disease associated with a Novel Infectious Agent in Workplace, which sets out the guidelines on preventive measures that may be taken.
  • Disinfecting the workplace regularly.
  • Maintaining good indoor ventilation.
  • Making sure that employees, suppliers and customers are aware of the employer's plans in the event of an outbreak.
  • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
  • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

During an outbreak

  • The steps the employer will take to ensure the safety of employees while at work during an outbreak including how an employer will identify risks of employees becoming infected and how to minimise such risks.
  • Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
  • Where employees will work, e.g., home, in the office or in alternative temporary offices.
  • At what stage will the workplace be closed and who will decide that.
  • How to deal with infection and/or deaths of colleagues, e.g., counselling.
  • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by the Novel Coronavirus.
  • What to do with high risk/exposure staff (e.g., pregnant, key employees and employees who travel)

After an outbreak

  • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
  • Rehabilitation for sick employees returning to the workplace.
  • Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, depending on the circumstances, employers may wish to:
  • Discuss with staff about the possibility of a workplace closure prior to closing;
  • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted;
  • Allow employees to work from home; and
  • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

4. Can I direct my employees to go home or stay at home if there is an outbreak?

Yes, but it depends. If the employee is infected with Covid-19 and keeping him or her away from the workplace is reasonably necessary to protect public health, then the employer may direct the employee not to attend at the workplace. The employer should continue to comply with its obligations under the contract of employment (e.g. to pay wages).

5. Can I direct an employee to see a doctor?

Yes, but it depends. Requesting an employee to see a doctor is invasive and an employer would therefore generally require an express power in the contract of employment to direct an employee to see a doctor. Depending upon the circumstances, an employer may require an employee to obtain a clearance from a doctor before being allowed to enter into the workplace.

6. Do I have to continue to pay wages and provide other employment-related entitlements during a Novel Coronavirus outbreak?

Yes. The contract of employment will continue during an outbreak unless the employment has ceased. An employer cannot refuse to pay wages simply because the employee is unable to attend the workplace or perform any work because of an outbreak and the office is closed.

7. Can I direct my employees to report suspected cases of the Novel Coronavirus?

Yes, in the event of a Novel Coronavirus outbreak, in our view, it would be lawful and reasonable to ask an employee to report if s/he suspects s/he has the Novel Coronavirus.

8. Can an employee lawfully refuse to attend work if there is a Novel Coronavirus outbreak?

It depends but is possible. Section 10 of the Employment Ordinance entitles an employee to terminate his contract of employment without notice or payment in lieu if s/he reasonably fears physical danger by violence or disease which was not contemplated by his contract of employment expressly or by necessary implication.

9. Can I screen employees and customers before allowing them to enter the workplace?

Maybe. Depending upon the extent of the outbreak, the screening of employees and customers may be a reasonable step for an employer to take to reduce the risk of its employees being exposed to harm. However, depending upon technological and medical testing limitations, there may be logistical and privacy issues with undertaking any such screening in a timely and effective manner before gaining entry to the building.

10. Can I stop a customer from entering the workplace if I suspect him or her of having the Novel Coronavirus?

Maybe. The Disability Discrimination Ordinance prohibits discrimination against a person with a disability in the provision of goods, services or facilities, as well as in the employment field. There is an exception if the disability is an infectious disease (which includes the Novel Coronavirus) and the discriminatory act is reasonably necessary to protect public health. So, if a customer is infected with the Novel Coronavirus and there is the risk of the customer exposing the employees to harm the employer may refuse entry to that person.

Originally published by Hong Kong General Chamber of Commerce.

March 08 2020

Visit us at www.mayerbrownjsm.com

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2020. The Mayer Brown Practices. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.