On 25 February 2022, the Hong Kong Government published the Employment (Amendment) Bill 2022 (the ‘Bill’) in the Gazette. The Bill seeks to amend the Employment Ordinance (Cap 57) (‘EO’) to tackle COVID-related uncertainties. The Bill is expected to be introduced to the Legislative Council for scrutiny very soon.
Upon passage of the Bill:
- a day on which an employee is subject to quarantine or compulsory testing requirements (an ‘affected employee’) would be regarded as a sickness day;
- an affected employee would be entitled to sickness allowance;
- employers cannot dismiss employees or vary their employment terms if they cannot perform their employment duties as a result of becoming affected employees; and
- subject to limited exceptions, employers can dismiss an employee or vary their employment terms, if the employee refuses to provide proof of vaccination.
This article provides an overview of the Vaccine Pass scheme and discusses the Bill’s implication on employers and employees.
The current situation
The Vaccine Pass scheme, which came into effect on 24 February 2022, requires individuals to show vaccination proof (or exemption proof) in order to enter certain premises. Understandably, this scheme has raised employers’ and employees’ concerns, given that unvaccinated employees may face difficulties attending work; for example, if their workplace requires a Vaccine Pass for entry. Moreover, as Hong Kong tackles the fifth wave of the pandemic, many residents have been subjected to a variety of COVID-19 measures, such as mandatory quarantine or compulsory testing, rendering it impossible to attend work.
This has led to the Government’s introduction of the Bill.
Sickness days and allowance
Under the existing provisions of the EO, a sickness day is defined as days where an employee is absent from work because of an injury or sickness. If an employee is absent from work due to mandatory quarantine or compulsory testing, their absence would not qualify as a sickness day. Instead, the employee would have to use their annual leave entitlement or run the risk of having their wages deducted for being absent from work.
The proposed Bill will revise the definition of sickness day. An employee who is absent on a work day due to him/her being subject to ‘Cap 599 requirements’, such as mandatory quarantine and compulsory testing, will be regarded as absent due to a sickness day instead. Accordingly, an employee will be eligible for statutory sickness allowance if relevant statutory requirements are fulfilled.
Dismissals and variation of employment terms
In determining whether an employer can lawfully dismiss employees or vary their employment terms, the EO provides five statutory grounds, which include, inter alia, the conduct, capacity or qualifications of the employee, and redundancy or other genuine operation requirements of the employer’s business.
In light of the Vaccine Pass scheme, the Bill also allows employers to dismiss or vary the employment terms of employees who fail to comply with a ‘legitimate vaccination request’ made by their employer within 56 days (the ‘compliance period’) of the request. Vaccination requests are legitimate, if they require employees to prove that:
- they have complied with the Vaccine Pass requirements, where the place of work is a public transport carrier or in any premises where the Vaccine Pass scheme applies;
- they have been administered with the requisite doses of vaccine, where the Government has required or recommended individuals in specific professions to be administered with a certain number of doses of COVID-19 vaccines; or
- they have been administered with at least one dose of vaccine, where no Vaccine Pass direction or requirement or recommendation is applicable.
Certain individuals are exempted from being subjected to such requests, e.g. a request under categories (1) and (2) above cannot be made to an employee who has been exempted from the Vaccine Pass requirements; whereas a request under category (3) cannot be made to an employee who is pregnant, breastfeeding, etc.
Currently, if an employer dismisses or varies an employee’s employment terms due to their refusal to be vaccinated or to show vaccination proof, it is unlikely that the dismissal or variation of employment terms would fall within the statutory grounds mentioned above. Thus, an employee could potentially claim for unreasonable dismissal or variation of their employment contracts. However, employers are still expected to act reasonably under the amended provisions by: (i) reasonably believing that the unvaccinated employee may pose a health hazard to people in the workplace should he/she test positive; and, (ii) delivering written requests to all fellow employees with the same or similar work nature.
In summary, the amendments to the EO proposed under the Bill is a double-edged sword for both employers and employees. It safeguards employees as their compliance with COVID-19 restrictions will be treated as a sickness day (and be eligible for sickness allowance), but employers will be able to dismiss or vary the employment terms of an unvaccinated employee, subject to various exceptions and limitations.
For further information, please contact:
Daniel Tang, Partner, Withersworldwide
Winnie Weng, Withersworldwide
Nicolas Lai, Withersworldwide