Mandatory quarantine orders - Are you ready?
COVID-19: Employment update
Are you ready for mandatory quarantine orders?
The recent mandatory quarantining of large blocks of people across Hong Kong has caused a significant amount of anxiety in the local community. Both employers and employees are affected by mandatory quarantine orders (MQOs) and often have little or no time to prepare before these bite.
We set out below the main issues that employers need to consider now, to equip them to comply with MQOs quickly and to deal with the inevitable employment issues which arise.
A. The Law
Under the Prevention and Control of Disease Ordinance the Government is empowered to issue quarantine orders to place close contacts of confirmed cases under mandatory quarantine at quarantine centres.
Close contacts named in a mandatory quarantine order (MQO) must stay in the quarantine centre for the specified period of time, usually 14 days. Those who fail to comply can be fined or even imprisoned.
Employers should bear the following issues in mind when developing a protocol to adopt if one or more of their employees is issued with a MQO.
B. Can the employee continue to do their job?
An employee who is required to go to a quarantine centre may, depending on the nature of the work, be able to continue to perform their job from the quarantine centre. The employer should ask the employee what tools they need to perform their duties e.g. a laptop and internet access, and arrange to deliver computer and / or other technical equipment to the employee where necessary.
When assessing what duties an employee in quarantine can perform the employer needs to take into account the circumstances of the quarantine e.g. whether the employee is in quarantine alone or there with other people including their children. The employer also needs to be reasonable about the amount and the nature of work they assign to the employee during the quarantine period. Some employees simply cannot work remotely e.g. customer-facing employees in the retail or hospitality industry.
C. Do I still need to pay an employee in quarantine?
If the employee continues to do their job from the quarantine centre, their employer must pay them as normal.
If an employee contracts COVID-19 whilst in quarantine and is unable to work, the legal position is simple; the employee is entitled to statutory sick leave under the Employment Ordinance (EO). If the employee is employed under a continuous contract, they should be paid four fifths of their pay provided:
a) the sick leave is supported by an appropriate medical certificate;
b) the sick leave is for not less than four consecutive days; and
c) the employee has accumulated sufficient number of paid sickness days.
The Labour Department issued a Guidance Note in March 2020 (Guidance Note) summarising the obligations of employers under the EO when their employee is affected by COVID-19. This encourages employers to:
“be considerate and show understanding to such employees’ situation and make flexible arrangements, including where practicable allowing employees to work from home or granting paid leave to them”.
The Guidance Note also notes that:
“This will help maintain good labour-management relations and protect the health of all employees as well as the community”.
Where the employee has not accumulated enough sickness days to cover their period of sick leave required due to COVID-19, the Guidance Note urges the employer to be compassionate and to consider continuing to pay sick pay after the employee has exhausted their statutory sick pay entitlement.
The position is not as simple where an employee is in quarantine, but does not contract COVID-19. Those employees will not satisfy the conditions set out in the EO making them eligible for statutory sick pay. If the employee is unable to perform their duties then strictly speaking the employer is not legally obliged to pay the employee for that period, because they are not reporting for work, or carrying out their duties. However, most employers will probably choose to pay the employee as normal, after taking into account:
a) the Guidance Note,
b) potential adverse reputational issues if they do not pay an employee while they are under an MQO; and
c) fostering good employee / employer relations.
Employers should be mindful that if they pay one employee during an MQO, and then subsequently decide not to pay another, this could, depending on the circumstances, lead to a discrimination claim if:
a) the relevant employee has a protected characteristic e.g. they are pregnant; and
b) they can claim that they have been treated less favourably than someone who does not have that protected characteristic.
D. Can I require an employee in quarantine to take annual leave during their quarantine period or agree with them that they will take unpaid leave?
There are two types of annual leave:
a) statutory annual leave, which the employee accrues under the EO (of between 7 – 14 days depending on the length of service); and
b) contractual annual leave, which is any annual leave in excess of statutory annual leave, granted to an employee in the contract of employment.
If the employer has a right under the employment contract to require the employee to take annual leave at the absolute discretion of the employer, the employer will be entitled to require the employee to do so during the quarantine period but only in respect of contractual annual leave (subject to the wording of the contract).
As for statutory annual leave, although an employer has a statutory right, after consultation with the employee, to determine when that leave can be taken, this is subject to strict conditions. These conditions are likely to restrict the employers’ ability to dictate that the employee take statutory annual leave during an MQO. Firstly, an employee has a statutory right to request that annual leave be taken non-consecutively (s.41AA (5), EO). Secondly, an employer must give an employee 14 days’ notice in writing of when such annual leave should be taken (and an employer in breach that requirement commits a criminal offence under s.63D, EO).
Employers should obtain advice before attempting to consult with employees if they want them to agree to take unpaid or annual leave during any quarantine period, in order to mitigate the risks of breaching the contract of employment or committing an offence.
We understand this can be a stressful time for all parties involved. In dealing with MQO’s and the resulting quarantine of employees, employers must be mindful of the overriding duty of good faith they owe to their employees. If they are unsure how to handle an employee who is subject to a MQO, they should seek advice in order to avoid both claims and the negative publicity these would generate.
We are here to help you develop your business continuation strategy should any of your employees be affected by a MQO.