Ahead of the city-wide compulsory universal testing planned for later this month, and following the announcements by the Hong Kong Government to put in place employment laws that permit no jab, no job policies and sick leave for employees subject to mandatory testing, quarantine or isolation, (covered in our previous alert), the Employment (Amendment) Bill 2022 (Bill) was published on 25 February 2022. The Bill provides further details of these proposed measures, which the Government has announced it plans to pass into law as soon as possible.
Employees absent due to mandatory testing, quarantine or isolation are eligible for sick leave pay and protected from dismissal
Under the Bill, it is proposed that the sick leave provisions in the Employment Ordinance would be expanded, such that the following employees will be entitled to statutory sick pay:
- those subject to a quarantine or isolation order. This includes, for example, close contacts of COVID-19 cases who are subject to mandatory quarantine orders (either at home or in a quarantine facility), and positive COVID-19 cases who are placed in isolation;
- those subject to a compulsory testing notice or order; or
- those within a premises subject to a restriction-testing declaration.
Notably, this proposal does not cover inbound travellers who are subject to mandatory quarantine. It is also yet unclear whether positive COVID-19 cases pending admission to a hospital or isolation facility (i.e. in de facto home quarantine), or those who have tested positive by a Rapid Antigen Test, would be covered.
After the amendment comes into force, eligible employees are entitled to statutory sick pay if they are:
- able to produce official proof (in hard copy or electronic form) that they have been subject to the relevant restrictions; and
- absent for at least four consecutive days.
Further, the Bill also provides that it is unlawful for employers to either dismiss or vary the employment terms of employees who have been absent from work due to the above restrictions.
Failure to comply with a legitimate vaccination request is a valid reason for dismissal
The Bill also proposes to allow employers to dismiss employees who fail to comply with a legitimate vaccination request. A legitimate vaccination request must be made in writing and must apply to all employees carrying out the same or similar job duties.
Legitimate vaccination requests can be issued to:
- Employees working in premises subject to the vaccine pass regulations (a list of regulated premises can be found here). Such employees are required to produce proof of at least one dose of COVID-19 vaccination. The dosage requirement will be gradually increased.
- Employees otherwise performing work subject to a vaccination requirement or recommendation by the Government. Such employees are required to produce proof that they have received the required or recommended dosage of the COVID-19 vaccine.
For example, civil servants are required to present their vaccine pass when entering Government buildings and offices for work-related purposes. As such, they would be required to present proof of at least one dose of COVID-19 vaccination upon the Government’s request (subject to the ‘risk of infection’ requirement outlined below).
It remains to be clarified whether such requirements or recommendations would extend to employees working in different government authorities, public bodies or even private workplaces. For example, it is unclear whether employees working within an authorised institution who are subject to the vaccination guidance issued by the Hong Kong Monetary Authority would fall within this category.
3. Other employees, subject to the ‘risk of infection’ requirement outlined below. Such employees are required to produce proof of at least one dose of COVID-19 vaccination. This category will likely extend to private employers.
At the time of making the requests, employers must reasonably believe that employees who are the subject of the request, would expose other persons to the risk of infection in the event that they contract COVID-19, having regard to the nature of their work (e.g. whether their work requires face-to-face contact with others) and the related operational requirements. In light of this, employers should consider conducting a risk assessment ahead of issuing a vaccination request to employees.
Where a legitimate vaccination request has been issued, an employee must produce a record of vaccination within 56 days from the date of the request. Failure to do so will constitute a valid reason for dismissal. In other words, this means that employers will be able to dismiss certain unvaccinated employees, provided they do not fall within any of the exemptions below.
Legitimate vaccination requests do not apply to employees who are exempt from vaccine pass regulations (further details set out here in our previous bulletin), or, in relation to employees not subject to vaccine pass regulations or vaccination requirements, those who:
- are pregnant or breastfeeding,
- are issued with a medical exemption certificate, or
hold a proof of discharge or recovery from COVID-19 issued by specific personnel authorised by the Director of Health within six months before the date of the vaccination request. At present, it is not clear whether persons who have recovered from COVID-19 without being hospitalised or placed in isolation facilities, or those who registered their Rapid Antigen Test results on the online system (current being set up by the Government), will receive such proof of recovery.
Key takeaways
The Hong Kong Government has announced plans to pass and enact the Bill as soon as possible, which may mean that it will be in force ahead of the city-wide compulsory universal testing planned for later this month.
The proposed changes are significant for employers as:
- employers will need to revise internal sick leave policies in response to the expanded sick leave provisions under the Employment Ordinance; and
- employers may be able to put in place no jab, no job policies with increased confidence that the dismissal of any non-compliant employee will be less open to challenge. Employers should conduct appropriate risk assessments to consider whether such policies are appropriate and reasonable in the circumstances, taking into account, for instance:
- the degree of face-to-face contact required in the employees’ usual course of work; and
- if the employee contracts COVID-19, the risk of transmission to others in the course of performing their usual duties.
Needless to say, employers should remain sensitive to employees’ genuine health conditions and consider each case individually. Employers may also need to consider what, if any, reasonable accommodations can be made in light of an employee’s particular circumstances.
The manner of the implementation of the Bill, as with other pandemic response measures, will likely change and evolve in view of the fast-moving pandemic landscape. The Government may also clarify certain practical issues relating to the Bill from time to time. Employers should keep a close eye on and monitor such developments on a continuous basis.
For further information, please contact:
Tess Lumsdaine, Partner, Herbert Smith Freehills
Tess.Lumsdaine@hsf.com
