“The legislative amendments seek to reflect the policy intent so as to clarify the rights and obligations between employers and employees under the epidemic, and to strike an appropriate balance between protecting public health and preserving employees’ rights and benefits” – Spokesman for Labour Department, 17 June 2022
Earlier this year, the Hong Kong government tabled the Employment (Amendment) Bill 2022 (“Bill”) whichproposed amendments to the Employment Ordinance (“EO”) in order to address employment-related issues arising from the government’s COVID-19 anti-epidemic measures.
On 15 June 2022, the Hong Kong Legislative Council passed the Bill and it took effect on 17 June 2022 (the “Ordinance”). The amendments will not have retrospective effect.
The Ordinance strengthens the protection of the employment rights and benefits of employees when they are absent from work due to compliance with specific anti-epidemic requirements and encouraging them to receive the COVID-19 vaccination currently being provided for free by the government.
What are the amendments to the EO?
- If an employee fails to comply with a ‘legitimate vaccination request’ from their employer, this will constitute as a “valid reason” for dismissal or variation of an employment contract. Pursuant to Schedule 13 of the Ordinance, a ‘legitimate vaccination request’ must meet the following requirements:
- It must be in writing;
- It must request the employee to produce to the employer within 56 days from the date of the making of the request:
- i. If the place of work is a public transport carrier or in any premises subject to the current Vaccine Pass requirement – 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.
- ii. 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.
- iii. If there are no requirements falling within (i) or (ii) 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.
- 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; and
- The request must be made to all other fellow employees of the employer who performs work that is the same as, or similar to, the work performed by the employee in question. The employer cannot make a request to just one employee in a group of employees performing the same work.
- If an employee fails to attend work due to compliance with a Cap 599 requirement, being 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) – this will not constitute as a “valid reason” for dismissal or variation of an employment contract; and
- The definition of “sickness day” in the EO has been expanded to include a day on which an employee is absent from work due to the employee’s compliance with a Cap 599 requirement. This includes an employees’ compliance with an isolation order, a quarantine order or a requirement under restriction-testing declaration which imposes a restriction on movement.
What should employers do now?
Employers should take note of the amendments to the EO and take a pro-active approach in adjusting their internal policies accordingly. Employees should also be notified of these changes via internal guidelines or even a simple notification email.
Employers should be aware that employees who have fulfilled the relevant criteria under the EO will be entitled to sickness allowance. The dismissal of an employee by reason of his/her absence due to compliance with the above anti-epidemic requirements will be considered as unlawful as they are protected from termination under section 33(4B) of the EO which makes unlawful the termination of an employee entitled to statutory sickness allowance.
How about employees?
Employees should take note of ‘valid legitimate vaccination requests’ made by employers pursuant to the requirements set out above – although each individual may have their own individual justifications and reasons for not taking the vaccination, if an employee is dismissed due to non-compliance with such request, the dismissal will not be considered as unreasonable dismissal.
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.