Hong Kong’s battle against COVID continues
and employers are facing challenges presented by the unclearly defined laws for
the unprecedented situations – e.g. whether employers may dismiss employees on
the ground of COVID infection? Whether employees are entitled to sick leave and
sick leave allowance if they are subject to compulsory quarantine, isolation or
testing? Whether employers may dismiss unvaccinated employees?
To address the issues, the government had
in February 2022 proposed amendments to the Employment Ordinance. The
Employment (Amendment) Bill 2022 had been passed by the Legislative Council on
9 June 2022 and is due to come into force. Legal proceedings issued by the
Equal Opportunities Commission in April and May 2022 may also be taken as
references on how the relevant laws will be enforced in relation to
COVID-related employment discrimination cases. This article gives you a quick
overview on these updates and answers employer’s most frequently asked
questions at this challenging time.
In the context of COVID-19, what constitutes disability discrimination?
The Disability Discrimination Ordinance (Cap.
487) (the “DDO”) protects persons with disability against discrimination,
harassment and vilification. COVID infection may be regarded as “disability” under
the DDO. Indeed, the Equal Opportunities Commission (the “ECO”) has recently
brought proceedings against disability discrimination based on COVID infection:-
Dismissal on grounds of COVID infection – On 21 April 2022, the ECO issued legal proceedings on behalf of a person who
was given a job offer, but whose offer was withdrawn after being diagnosed with
COVID, despite his treating doctor having confirmed his recovery and informing
the employer that he was ready to report duty.
Refusal or deliberate omission to offer employment
position – On 23 May 2022, the ECO issued legal
proceedings on behalf of an employee who received a WhatsApp message that he
was dismissed during his hospitalization due to COVID infection.
When is an employee entitled to sick leave?
Current Law
Under the Employment Ordinance (Cap. 57) (the
“EO”), a sickness day is a day on which an employee is absent from work due his
unfitness on account of injury or sickness, and an employee under a continuous
contract is entitled to sick leave and sickness allowance if (1) the sick leave
is supported by an appropriate medical certificate; (2) the sick leave taken is
not less than four consecutive days and (3) the employee has accumulated
sufficient number of paid sickness days.
The Amendments
The definition of “sickness day” is
broadened to the effect that if an employee’s absence from work is due to
compliance with requirements under the Prevention and Control of Disease
Ordinance (Cap. 599), he/she will be deemed to be on sick leave and employer
shall pay sickness allowances in accordance with the EO. Dismissal of any
employee by reason of him/her being subject to compulsory quarantine, isolation,
testing or otherwise compliance with the Prevention and Control of Disease
Ordinance constitutes unreasonable dismissal.
Can employers dismiss unvaccinated employees?
Current Law
There is no hard and fast rule providing
for employer’s right to dismiss unvaccinated employees. Generally, employers
are entitled to terminate an employment by giving notice or payment in lieu.
Valid reasons for dismissal include (1) conduct of the employee, (2) capability
or qualification to perform work, (3) redundancy or other genuine requirements
of the business; (4) statutory requirements and (5)
other substantial reasons. Further, employees have to obey lawful and
reasonable orders from employers, and failure to do so is a ground for summary
dismissal, as a consequence of which the employees will not be entitled to any long
service payment or severance payment.
Whether the employee’s refusal to get
vaccinated will entitle the employer to dismiss him or her will depend on the
facts and circumstances of the case, such as the employee’s suitability for
vaccination, job nature and work environment of the employee, and the impact on
the employer’s business if the employee refuses to get vaccinated. For
instance, employers of client-facing restaurants and hotels may more readily justify
their dismissal decisions based on the employees’ refusal to get vaccinated.
The Amendments
One of the valid reasons for dismissal
include the capability or qualifications of the employee for performing work of
the kind which he/she is employed to do, and employee’s failure to comply with
a legitimate vaccination request is now made a valid reason for dismissal under
the Employment (Amendment) Bill 2022. The amendment provides that an employee
who fails to comply with a “legitimate vaccination request” of the employer is
regarded as being incapable of performing work of the kind that the employee
was employed to do.
Legitimate Vaccination Request – the
requirements
A legitimate vaccination request is one
that:-
1. 1. Is
in writing;
2. 2. Requests
the employee to produce to the employer, within 56 days of the request
(a) Where
the place of work is a public transport carrier or any premises subject to
Vaccine Pass requirement – a record, document or information showing that the
employee has complied with the vaccine pass requirements (except where the
employee is exempted therefrom);
(b) Where
there are any other requirements or recommendations by the government that
persons performing a particular type of work are to be or should be vaccinated
(other than requirements under the Vaccine Pass) – a record, document or information
showing that the employee has compiled with such requirement or recommendation
(except where the employee is exempted from the Vaccine Pass requirement);
(c) Where
there are no requirements within (a) or (b) above, a record, document or
information showing that the employee has received at least one dose of vaccine,
except where the employee is (i) pregnant, (ii) breastfeeding or (iii) has been
issued an exemption certificate as being unsuitable for vaccination within 56
days of request; or
(d) Has
proof of discharge or recovery issued by an authorized person certifying that
the employee has contracted COVID within 6 months before the request;
3. 3. When
making the request, the employer reasonably believes that having regard to the
nature of the employee’s work and the related operational requirements, if the
employee contracts COVID, persons whom the employee may come into face-to-face
contact with will be exposed to risk of infection; and
4. 4. The
request is made to all other employees of the employer who performs the same or
similar work
The amendment therefore provides more
clarity as to when an employer may dismiss an employee for his/her refusal to
get vaccinated.
A practical note
Employers are advised to handle dismissal decisions
with sensitivity and prudence, converse with employees and take due account of
their individual circumstances. Even if legal proceedings are not eventually brought
or the dismissal is ultimately ruled lawful, a hastily made decision may
translate into unnecessary costs and expenses, and reputational damage in the
worst case. Employers should also keep an eye on developments and adjust their COVID
policies from time to time.
© Vivien Chan & Co., Newsletter issue 06, June 2022
All Rights Reserved
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Vivien Chan & Co. is a full-service law practice with offices in Hong Kong (1985) and Beijing (1993). We are consistently recognized as a premier law firm for and in Greater China. With over 35 years of doing business in Greater China, our Hong Kong and China teams have an in-depth understanding and knowledge of the legal culture and market dynamics.
