Terminal cancer or illness is never going to be easy for all involved. At such stressful and emotional times, everything should be done to try and make sure you and your loved ones are spared from any unnecessary additional complications.
The added stress of employment and the protections you have under employment law should not be of concern but, unfortunately, they often are.
Protections offered to the terminally ill
According to Hong Kong legislation, employers cannot dismiss an employee whilst they are on paid sick leave unless there is serious misconduct. If an employee is sick for more than four consecutive days with medical proof then their employer, under Hong Kong law, is required to pay them sick pay at the rate of four-fifths of their average daily wages (80% of their average daily wages).
This might appear reasonable, but it can present practical issues.
First, the four consecutive days deprive an employee of any sick pay if they have had to take a couple of days off for a check-up or treatment session.
Further, the right to statutory paid sick leave accumulates to a maximum of 120 days. It is accumulated at the rate of 2 paid sick days for each completed month of employment under a continuous contract during the first 12 months of employment, and 4 paid sick days per month thereafter. Therefore, in order to accumulate 120 days of sick leave the employee will have had to had worked for at least 3 years – without any period of sickness absence.
Once an employee has taken all their statutory paid sick leave then an employer can dismiss them legally, provided the employer does not fall foul of the protections provided under the Disability Discrimination Ordinance, Cap. 487. This is particularly worrying for someone with a terminal illness. Their illness is likely to be lengthy and will increasingly get worse. The person may be the main provider for several people and the looming threat of a dismissal can be exceedingly distressing and worrying for all involved.
The terminally ill might have to be reliant on the good will and heart of their employer. Sadly, businesses do not always operate in such ways and this leaves many people with prolonged illnesses in a precarious situation.
Protections offered to loved ones
If a loved one becomes terminally ill, then leave to spend as much time with them as possible would obviously be desired. In Hong Kong there is no statutory right for loved ones to have paid compassionate leave, or even unpaid leave. However, employees are usually entitled to a reasonable period of unpaid leave for dependants. Most companies will have a policy on this, and it can be found out by talking to the HR team or looking in the staff handbook.
Many employers will also have a policy for compassionate leave that can be found in employment contracts. In the absence of such a policy, the question of whether to grant compassionate leave falls to the discretion of the individual employer.
How do I know my rights?
If you are unfortunate enough to find yourself in the position where you or a loved one have become terminally ill, knowing your rights to leave will be essential. This can be a complicated procedure at times and tends to vary from company to company. Scrutinization of your employment contract is crucial to understanding what paid sick leave rights you have.
One thing that remains consistent is your rights to paid leave under the Employment Ordinance, Cap. 57. If you think that you may have been unlawfully dismissed or have not been provided the paid leave that you are entitled to then action should be taken. Employers who fail to provide sick pay to employees or unlawfully dismiss an employee are liable to prosecution.
At Hugill and Ip we believe it is essential that employees know their rights and employers know their commitments with regards to leave. It is particularly harrowing to think of suffering people being treated with disregard and we are hugely passionate about ensuring that these people receive the pay and leave they are entitled to.
This month Hugill & Ip has joined the World Cancer Day’s #IAmAndIWill campaign in support of Asian Fund for Cancer Research (AFCR). The firm will be donating part of its profits, helping to spread cancer awareness and raising funds from other corporations and individuals. Every contribution counts to fund cancer research and to save the lives of cancer patients.
Get involved in any way you can. Together we can create change.
For additional information about the campaign, please click on the following link. For donations, you can access AFCR “Ways to Give” link and set up gifts as one-off, monthly, in memoriam or in honor.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.