A First Look at the Amendments to the Employment Ordinance to Address Hong Kong's COVID-19 Measures

As mentioned in our earlier update the Hong Kong government proposes to amend the Employment Ordinance ("EO") to address employment-related issues arising from the implementation of anti-epidemic measures. We now have details of those amendments following the government’s gazette of the Employment (Amendment) Bill 2022 ("Bill") on 25 February 2022. The changes send a clear message that although employees will not be punished for complying with government COVID-19 measures, employers have an avenue to take more robust steps towards increasing their employee vaccination rate.

This is a first look at the amendments proposed by the Bill.

A. Failing to Comply with a Legitimate Vaccination Request Will Be a "Valid Reason" for Dismissal or Variation of Contract 

Part VIA of the EO provides certain employees with the right to bring a claim for unreasonable dismissal or variation of the contract of employment, and once a claim is made an employer will need to show a "valid reason" to defend the claim. 

One of the "valid reasons" under the EO is if the dismissal or variation is by reason of the capability or qualifications of the employee for performing work of the kind which they were employed to do. The Bill states on this ground that an employee who fails to comply with a "legitimate vaccination request" made by the employer is regarded as being incapable of performing work of the kind that the employee was employed by the employer to do (the "Valid Reason Amendment").

A "legitimate vaccination request" must satisfy the following requirements:

1. It must be in writing.
2. It must request the employee to produce to the employer within 56 days from the making of the request:
   
   (a) If the place of work is a public transport carrier or in any premises the subject of a Vaccine Pass requirement (see our article on the vaccine pass arrangement) – a record, document or information showing that the employee has complied with the vaccine pass requirements. This does not apply to an employee who is exempted from the Vaccine Pass requirements,
   
   (b) If there are any other requirements or recommendations by the government that persons who perform a particular type of work are to be (or should be) vaccinated apart from the requirements under the Vaccine Pass – a record, document or information showing that the employee has complied with this requirement or recommendation. This also does not apply to an employee who is exempted from the vaccine pass requirements.
   
   (c) If there are no requirements falling within (a) or (b) above – a record, document or information showing that the employee has been administered with at least one dose of the vaccine. This does not apply to an employee who is (A) pregnant, (B) breastfeeding, (C) has been issued with a specified exemption certificate as being unsuitable for the COVID-19 vaccine within the 56 days after the request is made, or (D) has proof of discharge or recovery issued by an authorised person certifying that the employee has contracted COVID-19 in the 6 months before the request is made.
   
   
3. When making the request, the employer must reasonably believe, having regard to the nature of the employee's work and the related operational requirements, that if the employee contracts COVID-19, the persons with whom the employee may come into face-to-face contact when the employee performs the employee's work will be exposed to the risk of infection.
4. The request must be made to all other employees of the employer who performs work that is the same as, or similar to, the work performed by the employee in question. That is, the employer cannot pick on just 1 employee in a group of employees performing the same work.

Comments:

1. This is a very specific amendment which empowers employers to increase the vaccination rate of their employees. Even where there is no requirement to comply with a government directive (such as the Vaccine Pass), an employer may still in its legitimate vaccination request ask for details showing that the employee has received at least one dose of the vaccine unless they fall within one of the exceptions. The implication here is that employers may regard that employees must have received at least 1 dose of the vaccine in order to perform work of the kind that the employee was employed by the employer to do. Of course, the employer will need to satisfy the other elements of a legitimate vaccination request set out above.
2. The Valid Reason Amendment provides some clarity for employers. However, employers should remember that the EO lays down minimum requirements and if they have more onerous obligations under the contract of employment, then they must still comply with those obligations or else they may still face a claim for breach of contract.

B. Compliance with a Cap 599 Requirement Will Not Be a "Valid Reason" for Dismissal or Variation of Contract 

The Bill will amend the EO expressly so that in determining whether the employer has a valid reason for the dismissal of the employee or the variation of the terms of the employee's contract of employment, the employee's absence from work due to the employee's compliance with a Cap 599 requirement will not be a valid reason for the dismissal or variation (the "Non-valid Reason Amendment").

A “Cap 599 requirement” is a requirement under the Prevention and Control of Disease Regulation (Cap 599A) or Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (Cap 599J):

1. where the employee is placed under quarantine or isolation or is within a place that is placed under isolation (ss.29(1) and (2) of Cap 599A);
2. to comply with a requirement under a compulsory testing notice or a compulsory testing order (ss.13(1) and 16(1) of Cap599J); or
3. not to leave any restricted premises that is the subject of a restriction testing declaration (s. 19C(1) of Cap 599J).

Comments:

1. In relation to the Non-valid Reason Amendment, an employee who is absent from work due to having to comply with a Cap 599 requirement will likely also be protected from termination under s.33(4B) of the EO which makes unlawful the termination of an employee entitled to statutory sickness allowance (other than by way of summary dismissal).
2. A period of compulsory quarantine on return to Hong Kong from overseas required under Cap. 599E is not currently listed as a Cap 599 requirement. As such, that type of quarantine will not fall under the protection envisaged by the Non-valid Reason Amendment.

C. Days Qualifying as "Sickness Day" for Sickness Allowance

The definition of "sickness day" in the EO will be amended to include a day on which an employee is absent from work by reason of the employee's compliance with a Cap 599 requirement.

The evidence required to be produced by the employee for the day to qualify for sickness allowance is:

(a) a document (in hard copy or electronic form) issued by a public officer or any person on behalf of the government that shows the "prescribed information" (see below) relating to the employee, or

(b) accessible electronic data (in a manner specified by a public officer) that shows the "prescribed information" relating to the employee.

The "prescribed information" is (i) the name of the employee subject to the Cap 599 requirement (or information that can identify the employee), (ii) the type of restriction imposed by that requirement and (iii) the commencement and expiry dates of the restriction.

However, if an employee is subject to a Cap 599 requirement due to the employee's serious and willful misconduct, then they will not be entitled to statutory sickness allowance in respect of a sickness day.

A sickness day that is due to a Cap 599 requirement which falls within an employee's bank of sickness days in category 2 will be exempted from the requirement to produce a medical certificate that is issued by a registered medical practitioner, registered Chinese medicine practitioner or registered dentist attending the employee as an out-patient or in-patient in a hospital.

An employee's absence from work due to having to comply with a Cap 599 requirement will not break the employee's period of continuous employment with the employer.

An employee will not be treated as taking statutory annual leave if the period which the employee is subject to a Cap 599 requirement commences before and continues during the scheduled annual leave. However, if the employee is subject to a Cap 599 requirement after the commencement of the scheduled annual leave period, then the employee may still be treated as having taken the period of annual leave.

The proposed amendment will not have retrospective effect. An employee will only be entitled to statutory sickness allowance in respect of compliance with a Cap 599 requirement after the proposed amendments come into force.

Comments:

1. A day where an employee is unable to attend work due to any restriction-testing declaration, compulsory testing notice or direction or compulsory quarantine arrangement will be treated as a sickness day, and provided the other usual requirements are satisfied, the employee will be entitled to statutory sickness allowance and protection from termination (other than by way of summary dismissal).
2. A period of compulsory quarantine on return to Hong Kong from overseas required under Cap 599E will not be a "sickness day" under the extended definition since it is not listed as a Cap 599 requirement in the proposed amendment to the EO.
3. In relation to the prescribed information required to be produced by an employee to be entitled to statutory sickness allowance, the current compulsory testing notice and restriction testing declaration will not typically set out the name of the employee. As such it remains to be seen what material the government will issue to those individuals at the time of testing so that they may claim the statutory sickness allowance.
4. Under the currently drafted Bill, the employee will be entitled to a full sickness day even though they may only spend part of a day (or only a matter of hours) complying with the Cap 599 requirement.
5. As at 25 February 2022 the government revised its strategy of issuing compulsory testing notices to instead distribute rapid test kits to high risk places. Any existing compulsory testing notice will be cancelled. The effect of this is that there will not be a need for an employee to attend compulsory testing at a centre and one less instance where the employee may need to take a sickness day.

D. Timeframe

The Bill will be introduced to the Legislative Council for first reading as soon as possible according to the government, although no date has been fixed yet. We will provide an update when the Legislative Council passes the Bill.

Reference: 

• Employment (Amendment) Bill 2022 gazetted today (info.gov.hk)
• Employment (Amendment) Bill 2022
• Government continues adopting risk-based testing strategy (info.gov.hk)