By Allison Lee
Hong Kong, 8 August 2022: Significant changes to Hong Kong’s employment regulations have been made to address workplace-related issues as a result of the Covid-19 pandemic.
Employers now have scope to dismiss a member of staff who refuses, without a valid excuse, to be vaccinated. As well, employees who fail to attend work due to compliance with government pandemic regulations are protected from dismissal and can claim sick leave.
The changes are contained in the Employment (Amendment) Ordinance 2022, which has been passed by the Legislative Council and has already come into effect. The new law cannot be applied retrospectively. The key points are as follows:
- If an employee fails to comply with a “legitimate vaccination request” from their employer and is not being exempted from the request, this constitutes a “valid reason” for dismissal. The vaccination request must be in writing and the employee has 56 days to comply. Also, the request must be made to all other employees who perform the same or similar work.
- A sickness day under the Employment Ordinance (EO) includes a day on which an employee is absent from work by reason of his/her compliance with a specific requirement that imposes a restriction on movement under the Prevention and Control of Disease Ordinance (Cap. 599) – for example, an isolation order, quarantine order or “restriction-testing declaration” – although it should be stressed that the restriction imposed on persons arriving in Hong Kong from other jurisdictions is not included.
- Proof required: Hard copy or electronic form of document or data issued by the government, identifying the employee, type of restriction and start and finish dates.
- Employers are required to grant sickness allowance to eligible employees – that is, those employed under a continuous contract – while sick leave taken should be not less than four consecutive days.
- Dismissal of an employee by reason of the employee’s absence from work due to his/her compliance with the above-mentioned restriction is considered as unreasonable dismissal under the EO.
According to the Labour Department, the amendments seek to reflect the government’s anti-pandemic policies. The intent is to strike an appropriate balance between protecting public health and preserving employees’ rights and benefits. The relevant provisions will be repealed when the pandemic is under control and vaccination is no longer a matter of grave public health concern.
The Labour Department has set up a dedicated page on its website to explain the new regulations. It includes downloadable files such as an information flyer, FAQs and the Amendment Ordinance itself. Apart from Chinese and English, information is also available in Hindi, Nepali, Sinhala, Urdu, Indonesian, Tagalog, Thai, Punjabi and Vietnamese.
Employers are encouraged to take note of the amended regulations and ensure members of their workforce are duly informed. As ever, we recommend seeking legal advice if clarity is required. Here at BC&C, we have a strong legal team well versed in Employment Law and related matters.
Allison Lee’s core practice areas include Employment Law, Company & Commercial and Family Law. She is experienced in general civil litigation with an emphasis on shareholders’ disputes, contractual disputes and contentious probate, plus matrimonial and family matters relating to children and finances. She can be contacted at firstname.lastname@example.org.