On 10 February 2020, the Hong Kong Labour Department issued a press release clarifying the position on whether the coronavirus amounts to an “occupational disease” within the meaning of the Employees' Compensation Ordinance (ECO).
What is the ECO?
The ECO provides a statutory compensation framework for employees who sustain injuries or die at work, or accidents relating to occupational disease. It requires all employers to take out mandatory employees’ compensation insurance to cover the cost of such claims.
The “occupational diseases” that are covered by the ECO are set out in Schedule 2. This includes severe acute respiratory syndrome (i.e. Sars) that caused the last pandemic in 2002/2003, but does not include the novel coronavirus (now officially named as Covid-19).
What has the Labour Department said?
A Government spokesperson has clarified that:
- As reported in the media and legal press, the coronavirus is not currently a prescribed occupational disease under Schedule 2 of the ECO.
- An employee may still claim compensation for a disease if it amounts to a personal injury by accident arising out of and in the course of their employment.
- If an employee contracts or suspects having contracted the coronavirus by accident arising out of and in the course of their employment, they should inform their employer immediately so that the employer can notify the Labour Department of the injury. If the employee has doubt as to whether the employer has reported the injury to the Labour Department, they should approach the Employees' Compensation Division of the Labour Department directly.
- The Government is looking into the issue of whether the list of occupational diseases under the ECO should be updated to include the novel coronavirus (Covid-19). Before doing so, it needs to consider what industries and employment processes have definite risks posed by the disease, as well as the prescribed period within which an employee must have been employed to work in those industries and processes. As the outbreak is still developing, further definite medical and epidemiological information must first become available before an amendment to the ECO will be proposed.
- The Government would also need to discuss the details of any proposed amendment to the ECO with stakeholders, including the insurance sector and employees and employers of related industries.
What does it mean for employers?
As we had anticipated in our earlier alert, the announcement confirms that the Government is considering updating the list of occupational diseases under the ECO to include the coronavirus. This would make it easier for eligible employees who have contracted the disease to bring claims under the ECO framework as they would not have to prove they had suffered an “injury by accident” or to bring any form of personal injury claim – such claims are more difficult and complex to sustain in practice.
Each disease prescribed under Schedule 2 is also tied to specific working conditions, industries/sectors and a prescribed period of time. In the case of Sars, the employee must be working in any occupation involving close and frequent contacts with a source or sources of severe acute respiratory syndrome infection by reason of employment in the medical care and research space, and for a period of at least 1 month. We expect the novel coronavirus to be subject to similar eligibility criteria if it is added. If so and an employee is able to satisfy these criteria, there would be a statutory presumption that the disease was due to the nature of the employment.
However, the Government has made clear that it will take some time for an amendment to the ECO to be tabled and ultimately passed.
The suggestion that employees who have contracted the coronavirus could bring a personal injury claim is not new. However, the Labour Department has now expressly suggested that there could be a reporting requirement for employers who have been notified. If an employee contracts the coronavirus and believes it was contracted in the course of their employment, it would be prudent to report this to the Employees' Compensation Division of the Labour Department (which is a statutory requirement). Any communications will need to be carefully drafted to minimize the risk of further liability outside the ECO framework.
Employers should contact their employees’ compensation insurance providers to check that claims associated with the coronavirus are sufficiently covered, or if any updates to their policy are required.
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