Regular COVID-19 Testing for Employees in the Catering Businesses and Specified Premises in Hong Kong

The Hong Kong government has recently announced the gradual relaxation of social distancing measures for catering and other businesses with effect from 18 February 2021 to 3 March 2021. Among other things, regular COVID-19 testing of staff is needed in order for catering businesses to provide dine-in services in the evening and to allow up to four persons to be seated together at one table, and in order for certain businesses to reopen.

1. What Is the Latest Policy and How Are Employers and Employees Affected?
   
   Under the government’s latest policy, in order for catering businesses to provide dine-in services until 10:00 p.m. and allow up to four persons to be seated together at one table, and for nine other specified premises to reopen, those premises owners or management (collectively referred to as Employers) shall comply with two additional measures, namely to:
   
   
   • require all customers or users to scan the "LeaveHomeSafe" QR code, or register their names, contact numbers, and the dates and times of their visits (and such records shall be kept for 31 days) before they are allowed to enter the premises; and
   • arrange for all staff involved in the operation of the premises to undergo a regular COVID-19 testing once every 14 days and ensure that the staff obtain SMS (mobile phone text message) notification of the test result and keep the SMS notification for 31 days.
   
   The nine specified premises are amusement game centre, fitness centre, place of amusement, place of public entertainment, beauty parlour, club-house, massage establishment, sports premises and hotel and guesthouse.
   
   Employers should note that a polymerase chain reaction-based nucleic acid test result is required. The government does not accept other test result such as rapid antibody test. Further, the result of the first COVID-19 testing for relevant staff must be obtained before 25 February 2021.
   
   If any of the additional requirements above or other requirements are not complied with, the government may impose measures to reduce the risk of transmission, including shortening the period during which dine-in services may be provided and closure of the premises for periods ranging from 3 to 14 days.
   
   
2. Can Employers Require their Employees to Undergo the Regular COVID-19 Testing?
   
   To answer this, we have to ask whether a direction to an employee to undergo COVID-19 testing on a regular 14-day cycle is a lawful and reasonable direction that is within the scope of the employee's employment.
   
   The fact that such direction is being made pursuant to the government's policy is a clear indication that such action is "lawful". To the extent that such direction is undertaken pursuant to the government policy and for so long as such testing is required for the Employers to provide dine-in services in the evening, allow up to four persons to be seated at one table and/or for the businesses to reopen, then generally such direction is reasonable and within the scope of employment.
   
   Any refusal to comply with a lawful and reasonable direction may result in disciplinary proceedings against the employee. In determining what disciplinary action should be taken against an employee, Employers should consider both the impact on the Employers of the refusal to comply with the direction as well as any mitigating circumstances. If there are no genuine mitigating circumstances then there may be serious consequences for the employee.
   
   
3. Can Employers Ask Employees for Their COVID-19 Testing Records?
   
   The government has set up an electronic platform to facilitate public downloading of electronic COVID-19 testing record from the website directly. Employees who get tested will also receive an SMS message notifying them of the result.
   
   While employees’ testing records are easily obtainable, Employers should not lose sight of the fact that asking for these electronic records will involve the collection and processing of employees’ personal data. As such, Employers should comply with the Personal Data (Privacy) Ordinance and, among other things, inform employees of the specified purpose for the collection of such records (i.e., for infection control and compliance with the government’s policy).
   
   Employers should also timely erase the personal data collected where the data is no longer required for the purpose for which the data was used unless such erasure is prohibited under the law or it is in the public interest for the data not to be erased.
   
   
4. Are Employers Required to Pay for the COVID-19 Testing?
   
   Free testing services are currently available at the Community Testing Centres for staff of catering businesses and other specified premises with prior booking for the initial three-month period. Free deep throat saliva specimen collection packs are also available at various designated post offices, MTR stations and general outpatient clinics of the Hospital Authority.
   
   Employers may also arrange for employees to undergo COVID-19 testing provided by private laboratories which are recognised by the Department of Health and can issue SMS notifications in respect of test results (please see the list at https://www.coronavirus.gov.hk/pdf/List_of_recognised_laboratories_RTPCR.pdf).
   
   Employers have an implied duty to indemnify employees in respect of expenses reasonably incurred in carrying out their duties. The regular COVID-19 testing is required in order for the relevant Employers to reopen their business, to provide dine-in services in the evening or to allow up to four persons to be seated at one table, so Employers will most likely have an obligation to pay for the testing services carried out at their direction.

For more details, please see the government’s press release which is available at: https://www.info.gov.hk/gia/general/202102/17/P2021021700662.htm