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In response to the rising number of COVID-19 cases in Hong Kong, on 8 February 2022 the Hong Kong Government announced a further tightening of social distancing measures.
It also set out details of Hong Kong’s new ‘vaccine pass’, which will mean only people who are vaccinated will be able to visit certain types of premises in Hong Kong (Scheduled Premises). The Scheduled Premises are listed under the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation and include:
- Bars and restaurants
- Shopping malls
- Cinemas
- Gyms
- Supermarkets
- Religious venues
The Government also announced plans to amend the Employment Ordinance (EO) to prevent labour disputes arising from the introduction of the vaccine pass.
Key takeaways for how these new measures will affect employers and employees are set out below.
Vaccine pass
Under the vaccine pass, (which will be rolled out in three stages), only persons who have been vaccinated against COVID-19 will be permitted to enter the Scheduled Premises unless they have an exemption (e.g. if they have a medical exemption certificate). This will include both visitors and employees who need to access the Scheduled Premises to perform their work (such as staff working in restaurants, shopping malls, department stores, supermarkets, fitness centres etc).
Stage |
Timing |
Vaccination requirement |
One |
From 24 February 2022 |
|
Two |
By end of April 2022 |
|
Three |
By end of June 2022
|
|
The Government recognises that certain visits to these premises may be ‘essential’ even for the unvaccinated and so has set out a list of exemptions including, helpfully, entering Scheduled Premises to receive a vaccination.
Termination of employees for absence from work
Failure to comply with the vaccine pass
The Government proposes amending the EO so that dismissing an employee who cannot attend work because they do not comply with the vaccine pass will not constitute unreasonable dismissal. In other words, employers will be able to terminate the employment of employees who say they cannot attend work in Scheduled Premises because they have not been vaccinated.
No details have been provided about how this amendment will work in practice. However, it is likely to be limited to employees who work in or are required to access Scheduled Premises to perform their work and is unlikely to be of wider application.
Whether it is lawful for an employer to terminate an employee who refuses to be vaccinated and whose duties do not require them to access Scheduled Premises will depend on the facts and circumstances of each case.
It is likely to be easier for an employer to justify the dismissal of an employee in these circumstances if they have a customer facing role, such as cabin staff in the airline industry, and in breach of the employer’s compulsory vaccination policy where such a policy constitutes a lawful and reasonable order of the employer.
Absence due to government-imposed lockdown or compulsory quarantine
The Government also proposes to amend the EO so that dismissing an employee because they are unable to attend work due to a building lockdown imposed by the Government or compulsory quarantine will constitute unreasonable dismissal.
An employee who cannot attend work due to a government-imposed lockdown or compulsory quarantine may be eligible for statutory sick leave. A medical certificate or mandatory quarantine order issued by the Department of Health will be deemed to be an appropriate medical certificate entitling the employee to statutory sickness allowance under the EO.
Although this is potentially a burden for employers, it provides some clarity regarding employers’ obligations where employees are unable to attend work because of quarantine or lockdowns
We will provide a further update when details of the proposed changes to the EO become available.
Hong Kong