Workplace Issues & COVID-19 in Asia Pacific: Hong Kong

Introduction

Hong Kong is fortunate to have a world class health system. Perhaps more importantly it has extensive experience and expertise in the management of epidemics of infectious diseases gained as a result of relatively recent outbreaks of SARS in 2003 and H1N1 (Swine flu) in 2009.

The immediate impact of COVID-19 in Hong Kong has been very similar to that of SARS back in 2003. Public places are disinfected several times a day, as are shops, office buildings etc. Despite these measures, many are avoiding going out to restaurants, shops, cinemas and other entertainment venues. Hospitals and other healthcare facilities are on high alert and under considerable pressure. Schools remain closed although most are providing students with online classes.

The memory Hong Kong people have of SARS has led to them adopting voluntary infection containment measures such as wearing face masks and regular hand washing/sanitising. Some may have considered these measures to amount to panic but they do appear, at least for the moment, to have been relatively effective in slowing down the spread of the virus in Hong Kong. But no one can afford to be complacent.

COVID-19 has already been severely disruptive for employers in Hong Kong, particularly those in the travel, hotel/hospitality, entertainment and retail sectors. This looks likely to continue to do so for some time. During these challenging times, employers need to be mindful of their obligations to their employees under health and safety legislation, employment and anti-discrimination laws and the potentially more serious business interruption issues which may arise if they do not take steps to address these issues.

Questions

1. Are employers subject to any specific legislation in respect of COVID-19?

No. Hong Kong has not yet enacted any employment specific laws with respect to COVID-19. The Hong Kong Government is generally reluctant to interfere in private sector employers’ employment policies. Whilst it directed civil servants to work from home from Chinese New Year until early March 2020 (and these measures have now been reintroduced), it only appealed to private employers to allow their employees to do the same. However, the Labour Department has issued a guidance note for employers and employees. This is headed ‘Obligations and rights of employers and employees under the Employment Ordinance (EO) relating to the Coronavirus Disease 2019 (COVID-19)” (the Guidance Note) and is set out on the Labour Department website (www.labour.gov.hk).

Employers should familiarise themselves with the provisions of the Guidance Note.

They should also:

be mindful of their obligations to employees under the Occupational Safety and Health Ordinance (OSHO) and their common law duty of care to provide a safe workplace;
ensure that any steps they take as a result of the COVID-19 outbreak, and in particular in dealing with an employee who is diagnosed with or is suspected of having, or being exposed to someone with, COVID-19, do not breach their:
- obligations under the Employment Ordinance (EO); or
- their contract with that employee (Employment Contract); and
- comply with the Disability Discrimination Ordinance (DDO) if an employee is diagnosed or suspected of being diagnosed with COVID-19 or is associated with a person with COVID-19.

2. Can an employee refuse to attend work because they are concerned about contracting the virus?

Generally speaking an employee cannot refuse to attend work just because they are fearful of contracting the virus. They would, however, be lawfully entitled to do so if they feel their workplace is dangerous or hazardous to their health. The following circumstances would probably warrant a refusal to attend work:

the government directing private businesses to make all employees to work from home because of an outbreak (and the employer is refusing to do so);
another employee is confirmed as having COVID-19 or is clearly showing symptoms, has not been tested and continues to attend work; or
an employee has been confirmed as having COVID-19 and the workplace has not been evacuated and professionally cleaned.

If an employee expresses genuine concerns about attending the office, the employer should consider whether it is possible for it to make alternative work arrangements. Employers should also ensure that they have taken reasonable measures to provide for the health and safety of their employees (see above). The Guidance Note also encourages ‘employers to be considerate and show understanding to such employees’ situation and make flexible arrangements.’ Employers may have to think creatively and seek solutions to ensure their employees feel safe coming to work.

3. What should an employer do if their employee is suspected/confirmed as having the virus?

That employee should not be allowed to attend work.

The employer should grant and pay that employee sickness allowance in accordance with the EO.

In terms of practical measures and employer should then take there is no law or guidance the employer is required to follow. However, bearing in mind the employer’s obligation to provide a safe workplace, we recommend that all employees who have been in contact with that person (certainly all those who have been in close contact) be sent home immediately and the office / workplace be professionally cleaned/disinfected. Employees should not return to the office until after that cleaning / disinfection has taken place (and it is deemed reasonably safe from them to do so). Employees who had close contact with the employee in question should be directed to work from home for at least 14 days.

4. What information is an employer entitled to require from an employee about their exposure to the virus?

We consider that it would be a lawful and reasonable instruction for an employer to demand that employees inform their supervisor immediately if:

(a) they have travelled out of Hong Kong in the past 14 days;
(b) they have travelled into Hong Kong on any flights that have had a case of COVID-19 confirmed on the same flight;
(c) they have had close contact with a person being tested for, or having tested positive for COVID-19;
(d) they are residing with anyone that is subject to government mandated quarantine which has been imposed on persons arriving in Hong Kong after midnight on 18 March 2020; or
(e) they are suffering from any of the symptoms associated with COVID-19.

5. What steps should an employer take to ensure it maintains a safe workplace?

An employer should have a clear plan to ensure all their workplaces remain safe. This should be communicated clearly to staff so that all employees fully understand their personal obligations with respect to self-reporting and taking care of their own health and environment hygiene.

Employers should ensure that the bathrooms / pantry are well stocked with disinfectant and soap and the office premises (particularly in the common areas) cleaned and disinfected regularly. Most employers are also asking their employees to take their own temperature each morning before attending work and ensure they remain out of the office if they are feeling unwell. Ideally, employers should also provide free face masks to employees where necessary (and if these are available).

Many employers are arranging for half of their workforce to work on different floors, if they have them and this is possible, and to take turns working remotely. This is to ensure that if an employee is diagnosed with COVID-19, half of the office can still attend work without having to go into 14 day isolation and in order to limit the risk of cross-infection.

6. Are there any statutory requirements or best practice guidelines?

In addition to the Guidance Note, the Hong Kong Department of Health has published Guidelines on Prevention of Coronavirus Disease 2019 (COVID-19) for the General Public(the CV-19 Prevention Guidelines). These provide useful guidance for individuals and employers should ensure any measures they put in place are consistent with that guidance. The CV-19 Prevention Guidelines encourage:

reducing social activities such as meal gatherings and to maintain social distancing.
good hygiene measures such as:
- maintaining good indoor ventilation and ensure the office is cleaned thoroughly; and
- encouraging good personal hygiene.

Employers should not host seminars or social functions pending a reduction in infections.

7. Can an employer require an employee not to attend work as part of its infection control measures?

This will depend on the basis of the employer’s request.

The legal position is that employees have an implied right to work. Strictly speaking therefore asking them not to come to work is probably a breach of the Employment Contract unless there is an express term in the Employment Contract providing for this or where an employer suspects an employee may have contracted an infectious disease.

We consider it would be reasonable for an employer to require their employee not to attend work as a precautionary measure if the employee:

(a) travelled into Hong Kong on any flights that have had a case of COVID-19 confirmed on the same flight;
(b) has had close contact with a person being tested for, or having tested positive for COVID-19;
(c) is residing with anyone that is subject to the government mandated quarantine which has been imposed on any person arriving in Hong Kong after midnight on 18 March 2020; or
(d) is suffering from any of the symptoms associated with COVID-19.

If, however, the employee is not showing any symptoms associated with COVID-19, has had no recent travel history to an infected area nor had any close contact with a person tested for or having tested positive for COVID-19, the employer should be prepared to justify why it requires that employee not to attend work. The employer must be careful not to discriminate against any particular employee.

It is imperative that the employer continues to pay their employees all wages and other payments owed to them during any period in which they are not required to attend work. This is to avoid a claim for constructive dismissal or breach of contract.

8. Does an employer have to pay sick pay to an employee who is self-isolating?

Statutory sick pay is only payable in Hong Kong if the employee can produce a medical certificate confirming that they are medically unfit to attend work. Strictly speaking therefore the employer has no legal obligation to pay statutory sick pay to an employee who is choosing to self-isolate. However given that most employers will direct any employee who has had close contact with a person who has COVID-19 to self-isolate, we would recommend that they pay the employee sick pay if they are not working during the self-isolation, or normal pay if they are working remotely during the isolation period.

9. When is an employer required to close its workplace?

At this time, there is no requirement in Hong Kong for an employer to close its workplace. However, an employer should have regard to its obligations under OSHO and its duty to provide a safe workplace in deciding whether to shut the workplace due to a community outbreak or a confirmed case of one of its employees.

10. If it does, is it still required to pay its staff?

If there is a forced closure mandated by government, then unless the business is shutting down and the employees are given notice of termination, then the employer must continue to pay its employees.

11. Is an employer entitled to require its employee to see a doctor and to provide the employer with a copy of the medical report?

Only if the Contract contains an express power to direct an employee to consult a medical practitioner. If not, an employer can request this but if the employee declines to do so, the employer does not have any legal right to insist on it.

Having said this, if an employee is clearly unwell then in the current circumstances we consider it would be a lawful instruction for an employer to direct an employee to remain out of the office until the employer is satisfied that the employee is not showing symptoms, or they produce a medical certificate indicating they are fit to work. If the employer decides to take this step they must ensure that they continue to pay the employee during that period (either their normal salary or statutory sick pay if they produce a doctor’s certificate).

12. Can an employee refuse to work with another employee who is suspected of having the virus?

This would depend on the basis for the employee’s refusal and in particular the basis for the suspicion.

If the employee’s refusal to work with the other employee is because the other employee is clearly showing symptoms, has not been tested and continues to attend work, we consider this would be a reasonable request. The employer should ask the employee suspected of having the virus not to attend work and the employer should grant and pay that employee sickness allowance in accordance with the EO.

Where an employee expresses genuine concerns about working with another employee, the employer should consider whether alternative work arrangements are possible or appropriate. They should also ensure that they have taken reasonable measures to provide for the health and safety of their employees (see above). We consider this would be consistent with the Guidance Note which encourages ‘employers to be considerate and show understanding to such employees’ situation and make flexible arrangements.’

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