Ahead of mandatory citywide universal testing scheduled for later this month, and following announcements by the Hong Kong government to introduce employment laws that do not allow sting, no employment and sick leave policies for employees subject to mandatory testing, quarantine or isolation, (covered in our previous alert), the Jobs (Amendment) Bill 2022 (Invoice) was published on February 25, 2022. The bill provides further details on these proposed measures, which the government has announced its intention to enact into law as soon as possible.
Employees absent due to mandatory testing, quarantine or isolation are entitled to sick leave pay and are protected against dismissal
Under the bill, it is proposed that the sick leave provisions of the Employment Ordinance would be extended, so that the following employees will be entitled to statutory sick pay:
persons 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 COVID-19 positive cases who are placed in isolation;
those subject to a mandatory test notice or order; Where
those located in premises subject to a restriction test declaration.
Notably, this proposal does not cover incoming travelers who are subject to mandatory quarantine. It is also not yet clear whether positive COVID-19 cases awaiting admission to a hospital or isolation facility (i.e. under de facto home quarantine), or those who have tested positive by a rapid antigen test, would be covered.
After the change takes effect, eligible employees are entitled to statutory sick pay if they are:
be able to produce official proof (in paper or electronic form) that they have been subject to the applicable restrictions; and
absent for at least four consecutive days.
In addition, the bill also makes it illegal for employers to terminate or change the terms of employment of employees who have been absent from work due to the above restrictions.
Failure to comply with a legitimate vaccination request is cause for dismissal
The bill also proposes to allow employers to terminate 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 performing the same or similar functions.
Legitimate vaccination requests can be directed to:
1. Employees working in premises subject to vaccine pass regulations (a list of regulated premises is available here). These employees are required to produce proof of at least one dose of vaccination against COVID-19. The required dose will be gradually increased.
2. Employees performing work otherwise subject to a government vaccination requirement or recommendation. These employees are required to produce proof that they have received the required or recommended dose of the COVID-19 vaccine.
For example, civil servants are required to present their vaccination card when entering government buildings and offices for business purposes. As such, they would be required to show proof of at least one dose of COVID-19 vaccination when requested by the government (subject to the “risk of infection” requirement described below).
It remains to be clarified whether these requirements or recommendations would apply to employees working in different government departments, public bodies or even private workplaces. For example, it is unclear whether employees working within an authorized institution who are subject to vaccination advice issued by the Hong Kong Monetary Authority would fall into this category.
3. Other employees, subject to the “risk of infection” requirement described below. These employees are required to produce proof of at least one dose of vaccination against COVID-19. This category will probably extend to private employers.
When making the requests, employers must reasonably believe that the employees who are the subject of the request would expose others to the risk of infection if they contracted COVID-19, having regard to the nature of their work. (eg if their work requires direct contact with other people) and related operational requirements. In light of this, employers should consider conducting a risk assessment before making a request for vaccinations to employees.
When a legitimate vaccination request has been issued, an employee must produce a vaccination record within 56 days from the date of the request. Failure to do so will constitute just cause for dismissal. In other words, this means that employers will be able to dismiss certain unvaccinated employees, provided that they do not fall under any of the exemptions below.
Legitimate vaccination requests do not apply to employees exempt from vaccination pass regulations (more details here in our previous newsletter), or, with respect to employees not subject to vaccination pass regulations or vaccination requirements, those who:
are pregnant or breastfeeding,
are issued with a medical certificate of exemption, or
hold a certificate of discharge or recovery from COVID-19 issued by specific personnel authorized by the Director of Health within the six months preceding the date of the vaccination request. At this time, it is unclear whether people who have recovered from COVID-19 without being hospitalized or placed in isolation facilities, or those who have recorded their rapid antigen test results on the online system (currently set up by the government), will receive such proof of recovery.
Key points to remember
The Hong Kong government has announced its intention to pass and enact the bill as soon as possible, which could mean it will be in force ahead of mandatory citywide universal testing due later this month. -this.
The proposed changes are important to employers because:
Employers will need to revise their internal sick leave policies in response to expanded sick leave provisions under the Employment Ordinance; and
employers may be able to implement no-sting, no-job policies with increased confidence that the termination of any non-compliant employee will be less likely to be challenged. Employers should conduct appropriate risk assessments to determine whether these policies are appropriate and reasonable in the circumstances, considering, for example:
the degree of direct contact required in the ordinary work of employees; and
if the employee contracts COVID-19, the risk of transmission to others in the performance of their normal duties.
Needless to say, employers must remain sensitive to the actual health conditions of employees and consider each case individually. Employers may also need to consider what reasonable accommodations, if any, can be made in light of an employee’s particular circumstances.
How to implement the bill, as with other pandemic response measures, will likely change and evolve given the rapidly changing pandemic landscape. The government may also from time to time clarify certain practical matters relating to the bill. Employers should closely monitor and monitor these developments on an ongoing basis.