Updated: Aug 25, 2020
Mid-January of the new year 2020, marked the news of an outbreak of the Coronavirus. This has sparked global fear over the risk of infection and has stoked vigilance among Hong Kong citizens to stay clean and safe.The Hong Kong government allowed civil servants and government employees to work from home until February 16. The government also urged private sector employers and work-places to follow suit, to curb the spread of disease within the city.With educational institutions suspending classes, and the government issuing health warnings to stay home and reduce contact with others, how are professionals supposed to cope? If you are an employee and unsure of your rights, this article is here to help.
Do I have to work from home?
In Hong Kong, it is implied that employees have the right to work. Therefore, employers cannot suspend employees without an express power stated in a contract or statute. This would mean that ordinarily an employer would not be able to simply suspend their staff’s employment. However, in the context of the Coronavirus outbreak, requiring employees to be ‘suspended’ and work from home has a low possibility of legal repercussions. This is due to the regulations that are put in place for quarantine and to protect employee health in the workplace. During the 2002 outbreak of SARS, the Hong Kong Labour Department encouraged employers to create work-place contingency plans and allows employees in “special risk categories” to take leave or work from home. These categories may include pregnant employees or those who have infected family members. These rules are not mandatory, but it is likely the government may adopt a similar arrangement when dealing with the Coronavirus.Employees can also be requested to stay or work from home if they pose a likely threat to the safety and health of colleagues within the office. This is generally determined case by case, but some of the obvious indicators include any employees who have recently travelled to Wuhan or Hubei Province, the PRC, and those who are suspected or confirmed carriers of the virus.Therefore, an employer can request an employee to stay/work from home as long as it is reasonable, such as protecting others’ health and safety within the workplace.
Do I still get paid if I work from home?
In short, yes. Unless the contract of employment has been terminated, your employer should continue to pay wages and should not refuse to do so because you are unable to go to work due to the outbreak. This is especially important for an employer, because by continuing to pay normal wages, it would help avoid claims surrounding disability discrimination or constructive dismissal.
Can an employer force me to have my temperature tested or go to the doctor?
Generally, an employer may ask an employee to see the doctor or have his or her temperature tested if the staff agrees to do so voluntarily. Considering the invasive nature of directing an employee to seek out a doctor, a contractually express power might be needed for the employer to do so. While possible, the main concern behind these medical tests would be data privacy. The Personal Data (Privacy) Ordinance (PDPO), primarily Data Protection Principle 1, provides the purpose and manner of data collection. The PDPO states that the collection of personal data must be lawful and within fair circumstances. Therefore, the biggest risk employers run when requiring employees to seek a doctor is that this could possibly be viewed as an unlawful or unfair collection of personal data. Considering temperature checking and medical records are a form of personal data collection, employers must be vigilant in explicitly explaining, inter alia, to whom the employee’s data will be sent to and for what purpose. Those who fail to do so may be in breach of the PDPO.While there may be legal repercussions for employers who force their staff to undergo medical testing against their will, employees who refuse to participate in such tests, may be reasonably denied access to the office or other communal workspaces. In terms of medical expenses, the employer should cover the costs of testing, which should be confined to examining whether an employee is infected or is showing symptoms.
Extra point to note
An employer must have a reasonable ground for requesting an employee to undergo a medical test. In the context of the Coronavirus outbreak, this could include determining whether an employee is infected or manifesting symptoms of infection to prevent the spread of the virus to other employees within the office.
If I contract the Coronavirus, does the Employees’ Compensation Ordinance (ECO) allow me to receive compensation?
It depends. Under the ECO, the Coronavirus is not (as of yet) listed as an occupational disease that allows for compensatory payment. While this is so, we can still look to section 36 of the ECO.S. 36 ECO: “nothing … shall prejudice the right of an employee to recover compensation under this Ordinance in respect of a disease to which this Part does not apply, if the disease is a personal injury by accident within the meaning of section 5.”This section essentially gives the employees the right to receive compensation for an illness that has not been labelled as an ‘occupational disease’ if the infection of the disease can be said to be a personal injury by accident occurring amid employment.
However, the ruling of whether infection of a disease results in an accidental personal injury is up to the Labour Department’s discretion.
The Labour Department would need to find:
An ‘accident’The accident must not be the disease itselfThe accident must at least contribute to or result in the contraction of the disease/injuryThe Labour Department may take medical records, circumstantial evidence, and other applicable information to determine whether an accident has taken place. If the above criteria have been met, then it may be possible for an employee to receive compensation under the ECO if they have contracted the Coronavirus.
Can my employer quarantine some employees in another building or section of the workplace?
It is possible but in doing so the employer must be mindful not to act contrary to the Disability Discrimination Ordinance (DDO). As an employee who has contracted or is suspected of having the Coronavirus will be considered someone with a ‘disability’ in the eyes of the DDO. Therefore, if not acting carefully, an employer could possibly be contravening the laws against discrimination.However, an easy defence to this would be that this “discriminatory act” has to be taken to protect the safety of others in the workplace or is taken in compliance with quarantine regulations.Subject to the circumstances of the case, it may be reasonable for an employer to ask an employee to work in a separate section of the workplace if this is to protect the health and safety of others. It could also be possible for an employer to request the employee to work in a different office if the employee’s contract allows for it, taking into account the time and expenditure incurred by the employee by changing offices.One example of an unreasonable request would be to ask the employee to work in another country, when the employee is not required to travel overseas for his/her work.
To summarise, what are the employer’s common law duties?
To answer this, we would have to look at mainly the Occupational Safety and Health Ordinance (OSHO), the Employment Ordinance (EO), the Employees’ Compensation Ordinance (ECO), and the Disability Discrimination Ordinance (DDO).Under the OSHO: An employer must ensure a practicable workplace that reasonably takes into account the health and safety of employeesUnder EO:
An employer must abide by the agreements under the EO and the employment contract (such as paying wages)
Under the DDO and ECO:
An employer must ensure the correct insurance in accordance with the ECO, and must report any illnesses or deaths in the appropriate time-frame.
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