With an increase in outbreaks of the novel Coronavirus (COVID-19) around the world, healthcare officials in Hong Kong are working vigorously to prevent a serious outbreak in the region. With strict quarantines and travel restrictions being enforced, authorities in Hong Kong have maintained a firm position on protecting the health and safety of citizens. Despite the epidemic, many businesses need to continue operation. Therefore, special consideration has to be made regarding the obligations of employers and rights of employees during this time.
In Hong Kong, there is a common law duty placed on employers to take reasonable care of their employees’ safety. Although the term ‘reasonable care’ can be interpreted in different ways, this would mean that employers should not place their employees at risk of any harm. To emphasize this position, a further statutory duty is placed on an employer, to ensure the health and safety of all employees at work, as far as reasonably possible.
Both the common law and statutory measures reflect that the onus is on an employer to make considerations and take measures to protect his/her employees.
Employers are advised to monitor any announcements made by the Government of Hong Kong and to take the appropriate measures to ensure compliance with any future rules or notifications made.
On February 5 2020, the Hong Kong Government imposed a mandatory quarantine on people entering Hong Kong SAR from mainland China. Any persons who have entered or stayed in mainland China in the past 14 days will be required to undergo a 14-day compulsory quarantine upon arrival. This includes residents of Hong Kong, foreign nationals and residents of mainland China. Under this measure, visitors entering Hong Kong are required to isolate themselves in a government-run center or a hotel room, while residents are required to stay at home.
As the outbreak of the virus is quite unique in nature, it is important for certain measures, such as working remotely, to be implemented. Such measures should be implemented to ensure the safety of employees and compliance with government regulation.
Working from home/working remotely
An employer is able to request an employee to work from home or work remotely, if there is a possibility that by attending the workplace, the health and safety of other employees is put at risk. Generally, if an employee is requested to work from home, he/she should continue to receive full compensation and benefits.
If, due to the nature of his/her work, an employee is unable to work from home, yet still requested to stay home, it is important that the employee still receives full pay. This is important as it protects an employer, in the event an employee makes a claim for breach of contract or constructive dismissal against the employer.
Request for leave
An employer can request or direct an employee to take his/her statutory annual leave. However, under the ‘Employment Ordinance’, this request requires an employer to give an employee at least 14 days’ advanced notice, unless both parties agree to shorter notice. In practice, it may be unlikely that an employee will agree to shorter notice. An employer can form and act according to its own rules, with regard to any additional leave (this does not include statutory leave).
Unless stated in the employment contract or handbook, an employer is unlikely able to request or direct an employee to take unpaid leave. If an employer wishes to direct or request an employee to take unpaid leave, the employer would need the employees consent to do so. If an employee is placed on unpaid leave for a substantial amount of time (the threshold is set out in the Employment Ordinance), that employee will be deemed to be “laid off” and, as such, may be entitled to severance pay.
Restrictions on travel
Business travel – In Hong Kong an employer may place restrictions on business travel, in order to comply with their obligations of employee safety. Currently, in light of the Coronavirus outbreak, many employers in Hong Kong have placed restrictions on business travel to mainland China, with some employers placing a total ban on it.
Personal travel – Employers in Hong Kong are not able to place a restriction on an employee’s personal travel (unless the travel is in breach of the law). If an employee decides to travel to a particular place while on annual leave, the employer may have recourse in terms of employment law. For example, if during the time of the Coronavirus outbreak, an employee takes annual leave and decides travel to mainland China for personal reasons; an employer may request the employee to take annual leave or leave without pay, during the mandatory quarantine (after the employee has returned to Hong Kong).
Current measures being adopted
Due to the rate at which the Coronavirus can be transmitted, many employers in Hong Kong have requested their employees to work from home, for the time being. As previously stated, if an employee is requested to work from home, the employee is still entitled to receive his/her full pay and benefits.
Some employers are coming to an agreement with employees, regarding the employees taking a period of unpaid leave.
Other employers are allowing their employees to go to work, however extra health and safety measures are being implemented. For example, providing employees with protective gear, sanitizers and regularly disinfecting the workplace.