Covid-19 – are employees protected?
What are your rights if you become ill with the coronavirus in the course of your work? Boase Cohen & Collins Associate Stephanie Lai examines whether a claim can be brought under the Employees’ Compensation Ordinance.
Hong Kong, 2 April 2020: In response to the latest escalation in confirmed Covid-19 cases, the government has once again adjusted public services and made special work arrangements for civil servants to reduce social contacts. However, employees in many private companies are still required to report for work amidst the outbreak.
Certainly, from an employment law perspective, it is not mandatory for companies to close their businesses in line with the government’s policies regarding some of its departments. So this begs the question: if an employee contracts Covid-19 in the course of work, can they claim compensation under the Employees’ Compensation Ordinance (ECO)?
Given the present climate, we may expect many more employees will be asking this question. With this in mind, it is important to understand the legal aspects under the ECO.
1. A No-Fault System for Work Injuries
The ECO establishes a no-fault, non-contributory employee compensation system for work-related injuries. This means that the employer does not have to be at fault for the employee diagnosed with Covid-19. So even if the employer had followed all the recommendations and guidelines for Covid-19 control in the workplace published by the Centre for Health Protection and had taken all other appropriate precautions, if an employee contracts Covid-19 at work, he or she may still make a claim.
2. Employee suffers an “Occupational Disease”
According to the ECO, if an employee suffers from an “occupational disease” (as specified in the Second Schedule annexed to the ECO), the employer is generally liable to pay compensation under section 32 of the ECO. That said, Covid-19 is NOT a prescribed occupational disease under the ECO.
While the public has called for the Hong Kong government to include Covid-19 as an “occupational disease” within the meaning of “occupational disease” under the ECO, the Labour Department issued a press release on 10 February 2020 stating that the proposed legislative amendment will require time and it can only be made when definite medical and epidemiological information is available and upon consulting with various stakeholders, including the insurance sector and related industries.
3. Employees’ Compensation for Job-related Injury
Under section 5 of the ECO, an employee may claim compensation if he or she sustains an injury, or their family may claim compensation if he or she dies, as a result of an accident arising out of and in the course of his or her employment.
Simply missing time from work having been diagnosed with Covid-19 does not automatically make an employee eligible for compensation under the ECO. Protection under the ECO applies where the injury (for the present purpose, contracting Covid-19), had been caused by an accident arising out of and in the course of employment.
An employee does not have to be infected while performing a specific job duty at his or her normal workplace. The first limb would be whether the employee was acting within the scope of what he or she was employed to do or was doing something incidental to the job even it was not part of the ordinary course of work. This would be a matter of fact and degree. Some situations in which employees may be eligible to receive Employees’ Compensation for contracting Covid-19 include:
- Travelling for work
- Attending a conference for work
- Meeting a client
- Attending a work-related event
The second limb would be to show that the injury (or disease) was work-related. This would be a question of proof.
Here, it is perhaps worthy to mention the Court of Final Appeal in Sit Wing Yi Sibly v Berton Industrial Limited  5 HKLRD 225 where the Applicant’s claim for compensation under the ECO was dismissed as the cause of death of the employee was unknown.
The Deceased was found to have collapsed in the toilet of his office of employment and died before reaching the hospital. His cause of death could not be determined.
The Deceased’s widow applied for compensation under the ECO on the ground of “personal injury by accident arising out of and in the course of employment is caused to an employee” under Section 5(1) of the ECO. The Deceased’s widow also relied on the presumption under Section 5(4) that “an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of an employment”, arguing that where the injury occurred at work, the employer had an onus of adducing evidence to show the injury was not caused by an accident.
The widow’s claim was rejected. The Appeal Court held:
- The presumption under Section 5(4) did not go to the distinct and earlier question of whether the injury was by accident, and is logically anterior to, any question of whether what has happened arose out of or in the course of employment; thus, it did not assist the claim.
- The expression “injury by accident” encompasses cause and effect, with accident as the cause and injury as the effect. The accident must be distinct from the injury, with the accident being at least a contributory cause and the injury being the effect. In this case, without a known cause of death, the injury could hardly be “by accident”.
Since insurance companies will likely get flooded with Covid-19 related claims, they will be looking for cogent evidence that the employee got infected on the job and not somewhere else. It would therefore be a challenge for employees to pinpoint the specific “cause” of the injury and whether it was “a personal injury by accident arising out of and in the course of employment”, since the incubation period for Covid-19 ranges from 1-14 days (according to the Centre for Health Protection).
If an employee contracts or suspects having contracted Covid-19 during the course of work (or otherwise), they should immediately inform their employer so that the employer can notify the Labour Department of the injury and take the necessary precautionary measures to minimise the risk of other employees becoming infected.
If the employee has doubt whether the employer has reported the injury to the Labour Department, the employee can approach the Employees’ Compensation Division of the Labour Department directly.
At the same time, regardless of where they may have become sick or whatever their legal rights may be, it is important for a responsible employee to stay at home and refrain from coming to work if they are diagnosed with or suspected to have contracted Covid-19.
Author: Stephanie Lai, Associate
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Strict hygiene regulations are being imposed in workplaces to combat the coronavirus.