Up Again Hong Kong: People

Employment

1. Are there any legal requirements that employers must comply with before they send their people back to work and reopen physical premises?

The Hong Kong government has so far not introduced any statutory requirements or guidelines on returning to work.

Before doing so, employers will need to be able to satisfy themselves that they have taken all reasonably practicable steps to ensure the safety and health of employees and anyone else working on the premises to ensure they meet their general duty to maintain healthy and safe workplaces for employees. This will vary by employer and by location, but generally speaking employers should consider maintaining existing health and safety processes for an interim period, such as taking temperature checks, requiring visitors to declare travel and medical histories, providing face masks and hand sanitisers, and requiring employees to notify the employer if the employee has tested positive or is displaying symptoms. Employers should also consider whether any further measures are appropriate, such as social distancing of desks, requiring phased return to work or split shift working. Employees should be reminded to stay vigilant and continue to take the measures seriously.

2. As we reopen post-COVID-19 lockdown, what are the health and safety obligations employers need to pay attention to around the physical premises?

As noted above, it would be prudent for employers to continue existing protocols for an interim period. Increased cleaning of premises is a further measure for employers to consider.

3. Can employers ask employees to take medical tests or show test results or medical certificates before returning to work?

Full medical testing/screening should be carried out only with an employee’s express, voluntary consent. It may be possible to implement less intrusive medical screening measures without individual consent and provided the employer complies with applicable data privacy laws, such as temperature checks and travel declaration forms.

4. What if employees refuse to take the requested medical tests or provide the requested medical test results or certificates before returning to work?

Without express, voluntary consent, it is likely to be viewed as excessive and unreasonable to require employees to undergo testing as a pre-condition to returning to work, and an employer would face potential claims if it refuses to allow employees who are otherwise ready and willing to return to work to do so.

The Hong Kong Labour Department has encouraged employers to show employees compassion and flexibility during this period. Any contemplated disciplinary action should therefore be handled with caution and only after seeking legal advice.

5. If there are employees who still need to stay at home due to school closures or to look after sick relatives, is the employer obliged to pay them?

If the employee is not sick and is staying at home to attend to childcare responsibilities or look after sick relatives, then strictly speaking there is no obligation to provide full pay and any such period of homeworking would require the employer's consent. Having said that, employers are being encouraged to treat employees with compassion and flexibility. Employers should consider homeworking arrangements wherever possible. If this is not possible, then the parties may want to consider other alternatives, such as reduced working hours, reduced salary, or unpaid leave – but these would all be subject to agreement.

6. If there are employees who still fear contracting COVID-19, can he/she refuse to show up to work in the office?

Employees can refuse to come to work if they reasonably believe there is a risk to their health and safety. What will be considered "reasonable" should be assessed on a case-by-case basis, and it would be prudent to have discussions with employees to understand their concerns and see if these can be reasonably addressed.

7. Can an employee refuse to attend a business meeting with someone from out of town or overseas?

It needs to be discussed on a case-by-case basis. If the person from out of town or overseas has completed their quarantine period according to local rules or there is no reasonable suspicion that the person has tested positive, is a suspected patient or a close contact thereof, then the employee generally cannot refuse to attend the business meeting. If the employee’s concern appears to be reasonable, then the employer should try to make alternative arrangements where possible, for example by arranging a dial-in.

8. As business resumes, what are the things to pay attention to when asking people to travel for business?

Many overseas locations are still high risk and subject to quarantine restrictions. Employers should continue to comply with local government guidelines, and should generally dissuade all non-essential business travel through high-risk areas or where the imposition of quarantine restrictions would hamper the individual’s ability to return to work easily.

9. Can employers adopt flexible work options such as imposing part time or shorter hours?

Yes, but only with the employee’s express, voluntary consent.

10. Can an employer require employees to notify the employer in the event that they test positive for COVID-19 or display symptoms of COVID-19?

Yes, this is a reasonable request and employees should be required to do so.

There is no express obligation to notify government authorities that an employee has tested positive. However, employers should be prepared to cooperate with the Department of Health in the case of an investigation and required contact tracing (both social and close contacts).

If, however, an employee contracts or suspects having contracted COVID-19 by accident arising out of and in the course of their employment, then the employer is required to notify the Labour Department of the “injury,” as this would potentially allow the employee to bring a claim under the statutory employees’ compensation regime in Hong Kong. If there is any doubt as to whether the employee contracted the virus during work or outside work, the prudent course of action would be to notify the Labour Department.

11. Is it possible to reduce the salary of the employees to offset the lost profitability due to effects of COVID-19?

This is only permissible with the employee’s express, voluntary consent.

12. Is it possible to temporarily suspend work for employees due to the business downturn as a result of COVID-19?

This is only permissible with the employee’s express, voluntary consent.

If the employer needs to suspend business operations without obtaining consent, this would give rise to redundancies and may trigger liability to pay statutory/contractual severance payments to eligible employees.

In addition, an employee is considered to have been “laid off” if they are not provided with work/pay for:

  • more than half of the total number of working days in any period of four consecutive weeks; or
  • more than a third of the total number of normal working days in any period of 26 consecutive weeks.

Layoffs are treated as redundancies for all intents and purposes, and will give rise to liability to pay statutory severance to eligible employees, as set out above.

13. Can employers request employees to take annual leave due to the business downturn as a result of COVID-19?

For statutory annual leave, yes – employers are generally free to determine the dates on which employees must use their statutory paid accrued annual leave, provided they have consulted with them in advance and given them not less than 14 days' written notice. There is no definition of what amounts to sufficient "consultation"; if the employer has entered into some form of dialogue with the employee and allowed them some time to consider their views, this should be sufficient.

For contractual accrued annual leave (i.e. anything over the statutory minimum), the treatment would depend on the employee’s employment contract/applicable annual leave policy.

14. Can employers ask employee to take unpaid leave?

This is permissible only with the employee’s express, voluntary consent.

15. In terms of employee payroll costs, are there any government assistance program / relief measures to assist employers that continue to do business?

The Hong Kong government recently announced a HKD137.5 billion package of relief measures to tackle the COVID-19 outbreak. This includes an HKD80 billion Employment Support Scheme to encourage employers to retain staff through the provision of a wage subsidy expected to benefit 1.5 million employees. All private sector employers who have been making Mandatory Provident Fund/other occupational retirement scheme contributions are eligible to claim up to 50% of the employee’s monthly salary. This is capped at HKD18,000 per employee per month (i.e. HKD9,000 per employee per month) for a period of six months. The subsidy will be disbursed in two tranches, with the first disbursement to occur no later than June 2020. The subsidy is conditional on the employer undertaking they will not implement any redundancies during the subsidy period.

At the time of publication, the government has said it is liaising with Mandatory Provident Fund trustees and relevant stakeholders to work out the implementation details, which will be announced before application for the first tranche is invited.

There are also a series of one-off grants for the hardest-hit sectors including tourism, aviation, catering / food and beverage, and education.