Hong Kong employment issues arising out of the Coronavirus disease (COVID-19)

Introduction

On 4 February 2020, Hong Kong reported its first fatality in relation to the Coronavirus COVID-19 ("COVID-19"), which originated in Wuhan, China. The number of globally confirmed cases of COVID-19 has surpassed the number of cases reported during the SARS outbreak in 2003. On 30 January 2020, the World Health Organisation declared the outbreak as a Public Health Emergency of International Concern.

In Hong Kong, COVID-19 has caused serious disruption to the economy, and has had a considerable impact on the workforce.

On 28 January 2020, the Hong Kong Government announced that its employees (except for staff of the departments providing emergency services and essential public services) were not required to return to their offices and were to work from home starting from 29 January 2020 in order to prevent the spread of COVID-19. Such measures extended until March. The Government also called on institutions in the private sector to adopt similar measures to assist in minimising the threat of COVID-19 spreading in the wider community. Businesses in Hong Kong have adopted a range of measures, up to and including temporarily shutting down their operations.

COVID-19 has proven to be unpredictable, it remains unclear how long it will continue to affect Hong Kong. Employers will therefore continue to have to deal with its effects on their businesses, and should ensure that they are fully aware of their legal obligations to their employees. This article sets out some of the key issues that employers should consider in dealing with the outbreak.

Employer's legal obligations in relation to safety and health of their employees

Employers have a statutory and common law duty to provide a safe place of work for all of their employees. Pursuant to the Occupational Safety and Health Ordinance (Cap. 509) ("OSHO"), employers must, insofar as it is reasonably practicable, ensure the safety and health of their employees at work. This includes maintaining a workplace that is safe and without risks to health.

To satisfy these obligations, employers should implement measures at the workplace to:

• reduce health risks at the office¹ (e.g. increasing ventilation in the office, providing antiseptic soap)

• reduce health risks that may arise from employees (e.g. requiring all employees to report whether they have travelled to regions at high risk for COVID-19, any symptoms of COVID-19, such as fever immediately)

• manage any COVID-19 outbreaks that may arise from potentially infected employees (e.g. monitoring the news to identify whether any individual confirmed to have contracted COVID-19 has visited a retail space)

Employer's general employment obligations

Over the course of the COVID-19 outbreak, it has become common for shops / retailers with reported contact with individuals confirmed to have contracted COVID-19 to suspend business as a form of self-quarantine. Some employers have also instructed individual employees who have been in contact with individuals confirmed to have contracted COVID-19 to self-quarantine.

Employers are reminded that employees generally have an implied right to work. Accordingly, employers may not unilaterally decide to place employees on unpaid leave. Accordingly, as an alternative to this, employers should consider asking employees whether they will, for the purpose of reducing the risk of infection, agree to:

• take annual leave with the employer's consent

• enter into an agreement with the employer to take unpaid leave

• work from home (if such arrangements are available)

• a reduction in salary for the period of self-quarantine or work from home

Regardless of the option implemented, employers should always ensure that employees who are on annual leave, statutory sick leave or working from home, etc. continue to receive their wages, statutory and contractual benefits.

Where the employee agrees to a variation of their contractual terms, it would be prudent for employers to document any such variations (especially those in relation to reduction of salary and benefits) in writing. Written variations should be signed by both the employer and employee in order to avoid disputes later on.

Discrimination

Pursuant to its obligations under the OSHO, an employer may be required to prevent employees who have or are suspected of having contracted COVID-19 from entering the workplace.

COVID-19 is likely to fall within the wide meaning of "disability" set out in the Disability Discrimination Ordinance (Cap. 487) ("DDO"). An employee subjected to less favourable treatment by his / her employer, as a result of having or the suspicion of having contracted COVID-19, may allege unlawful discrimination.

The DDO does however provide an exemption for discriminatory acts in relation to a disability that is an infectious disease. Such discriminatory acts are not unlawful if they are reasonably necessary to protect public health.² Pursuant to the guidance set out by the Equal Opportunities Commission,³ it is unlikely to be unlawful to prevent an employee from attending work to avoid creating a public health risk.

In view of the contagious nature and severity of COVID-19, it would appear reasonable for an employer to require employees displaying symptoms of COVID-19 to refrain from going to work. While such treatment may be discriminatory, it is unlikely that this amounts to unlawful discrimination because it is reasonably necessary to protect public health. Employers should ensure that they consider all relevant factors and alternatives before taking any potentially discriminatory actions to avoid imposing any unreasonable and/or or unnecessary hardship. They should also be careful not to single out specific employees or groups of employees when implementing risk reduction measures.

Data privacy issues

In view of preventing an outbreak of COVID-19 in the workplace, employers may consider asking their employees to submit health declaration forms or to undergo temperature testing.

Such measures involve the collection of personal medical data. They are therefore subject to the Personal Data (Privacy) Ordinance (Cap. 486) ("PDPO"). Data Protection Principle ("DPP") 1 of the PDPO provides that only necessary, adequate but not excessive personal data shall be collected by a data user for a lawful purpose directly related to its function or activity.

The medical data in this case is collected for the purpose of monitoring and preventing health risks in the work place. Given the employer's obligation under the OSHO, it is likely that any such collection of medical data is considered necessary and directly related to the employer's lawful functions. Such measures are therefore unlikely to be in breach of DPP 1.

DPP 3 requires that the personal data is only used for the purposes for which it was collected. Any other use of such personal data requires separate consent. In view of the COVID-19 outbreak, the Privacy Commissioner recently stated⁴ that separate consent under DPP 3 may not be required when the personal data is used for the safeguarding of public health.

The Privacy Commissioner stated that the right to personal data privacy must be balanced against the absolute right to life and the interests of the public. Section 59 of the PDPO also provides an exemption from DPP 3 where the use of data relates to the safeguarding of the physical or mental health concerns of the data subject or any other individual in the interest of the public.

Accordingly, when collecting and using medical data, employers are reminded to:

• refrain from asking for excessive medical data

• inform employees of the purposes of collection and classes of person to whom the data may be transferred

• ensure that the personal data is fairly collected

• ensure that the use of data remains within the scope of the intended purpose and/or purposes that fall within section 59 of the PDPO

Employee's right to refuse work

Pursuant to section 10 of the Employment Ordinance (Cap. 57), an employee who reasonably fears for his or her physical danger by violence or disease may terminate their contract of employment. Under those circumstances, employees are not required to provide notice or make a payment in lieu.

While COVID-19 is regarded as a serious public health problem, employees cannot choose to terminate their employment without notice merely on the basis that there is a general risk of infection. Employees may run the risk of being dismissed with or without notice if they persistently refuse to return to the office and/or wilfully disregard the lawful instructions of their employer. The specific circumstances of an employee's employment would need to involve a genuine risk of exposure to infection in order for such a right to terminate to arise. That position may change if, for instance, the Hong Kong Government raised the threat level or imposed more drastic health measures.

Longer-term implications for employers

In order to minimise any risk to safety and health in the current outbreak of COVID-19, whilst at the same time maintaining business continuity, employers should:

• consider adopting flexible working arrangements

• continually evaluate workplace response protocols in the event of an outbreak

• educate employees as regards how to reduce health risks

• inform employees of their expectations as regards working arrangements if a work from home system is implemented

• comply with the relevant employment laws when formulating measures to create a safe working environment

• consult with employees and where possible address their concerns and anxieties about the situation

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[1] See the Centre for Health Protection's fact sheet on Severe Respiratory Disease associated with a Novel Infectious Agent in Workplace
[2] section 61(1), Disability Discrimination Ordinance
[3] Disability Discrimination Ordinance Code of Practice on Employment (2011)
[4] Media Statement, 26 February 2020

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