Hong Kong Government Announces Expansion of the Use of Vaccine Pass and Proposed Amendments to the Employment Ordinance

On 8 February 2022, the Hong Kong Government announced the expansion of the use of vaccine pass and certain amendments which will be made to the Employment Ordinance (Cap. 57).

Vaccine pass arrangements

The vaccine pass arrangements will apply to 23 scheduled premises set out in Schedule 2 of the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation (Cap. 599F) (Scheduled Premises)¹. Such arrangements will be rolled out in 3 stages, and visitors to any Scheduled Premises must use the LeaveHomeSafe mobile application and comply with the relevant vaccination requirements as follows:

• Stage 1: From 24 February 2022, all individuals aged 12 or above must have received at least 1 dose of vaccine.
• Stage 2: By the end of April 2022, all individuals aged 18 or above must have received at least 2 doses of vaccine, and all individuals aged 12 to 17 must have received at least 1 dose of vaccine.
• Stage 3: By the end of June 2022, all individuals aged 18 or above must have received 3 doses of vaccine if they have received their second dose over 9 months ago, and all individuals aged 12 to 17 must have received 2 doses of vaccine if they received their first dose over 6 months ago.

Details of the vaccine pass arrangements will be set out in a new Prevention and Control of Disease (Vaccine Pass) Regulation (Cap. 599L), which was published in the Gazette on 8 February 2022 (Regulation). According to the Regulation, certain exemptions will apply to the vaccine pass arrangements, which include the following:

• where an individual holds a medical exemption certificate;
• where an individual enters a Scheduled Premises only for placing an order for takeaway food or drink, taking takeaway food or drink, delivering or picking up an article or performing necessary repairs on the Scheduled Premises;
• where an individual enters a Scheduled Premises only for receiving vaccination or medical treatment or undergoing a specified test provided on the Scheduled Premises;
• where an individual passes through a Scheduled Premises only for receiving essential government service that is provided on the Scheduled Premises or any premises in the same building as the Scheduled Premises;
• where an individual enters or passes through a Scheduled Premises only for appearing as a party or a representative of a party to any proceedings in any court or statutory tribunal or board held on the Scheduled Premises or in the same building as the Scheduled Premises; and
• where the individual has lawful authority or reasonable excuse for entering or remaining in a Scheduled Premises without having been vaccinated – note that according to the Government spokesperson, an example of reasonable excuse is where an individual can only access their home or place of work via a Scheduled Premises, such as a shopping mall. The Regulation however makes clear that an individual would not be considered as having a reasonable excuse merely because the Scheduled Premises is the individual’s place of work for the purposes of work.

(There are other exemptions which would apply under limited circumstances, such as where it is reasonably necessary for an individual to enter a Scheduled Premises in order to avoid physical harm, or where an individual is required to enter a Scheduled Premises by a public officer.)

Proposed amendments to the Employment Ordinance

In order to minimise employment disputes arising from the anti-epidemic measures, the Government plans to make various amendments to the Employment Ordinance. Specifically, the law will make clear that:

• dismissal of employees on the basis of their inability to attend work due to non-compliance with the vaccine pass arrangements will not constitute unreasonable dismissal; and
• dismissal of employees who are unable to attend work due to a Government-imposed lockdown or compulsory quarantine will constitute unreasonable dismissal. In addition, any medical certificate or mandatory quarantine order issued by the Department of Health will be deemed to be an appropriate medical certificate for the purposes of determining whether the employee is eligible for statutory sickness allowance.

At this stage, no further details have been provided in relation to the proposed amendments, but based on the information available, the practical effect of such amendments is as follows:

1. an employer can dismiss any employee by reason that they are unable to attend work due to their failure to comply with the relevant requirements under the vaccine pass arrangements. It has not yet been definitively confirmed whether this will apply only to those who are unable to work due to failure to meet vaccine pass requirements (and thus be limited to those who work in/whose duties involve them attending Scheduled Premises).
2. an employer must not dismiss any employee by reason that they are unable to attend work due to a Government-imposed lockdown or compulsory quarantine.
3. an employee who is absent from work due to a Government-imposed lockdown or compulsory quarantine will be eligible for statutory sickness allowance provided that:

a. the sick leave taken is not less than 4 consecutive days;

b. the employee is able to produce a medical certificate or a mandatory quarantine order issued by the Department of Health; and

c. the employee has accumulated sufficient number of paid sickness days.

No indication has yet been given as to the timing for when the above changes to the Employment Ordinance will take effect. We will provide further updates in due course.

¹ These will include 6 newly added Scheduled Premises, including religious premises, shopping malls, department stores, supermarkets, markets and barber shops or hair salons, as well as the 17 existing Scheduled Premises, namely, amusement game centres, bathhouses, fitness centres, places of amusement, places of public entertainment, party rooms, beauty parlours, club-houses, clubs or nightclubs, karaoke establishments, mahjong-tin kau premises, massage establishments, sports premises, swimming pools, hotels or guesthouses (except for premises specified in the Schedule to the Hotel and Guesthouse Accommodation (Exclusion) Order (Cap. 349C), cruise ships, premises that are not private premises or places of public entertainment and are for the time being used, with the consent of the owner, manager or tenant of the premises, for holding a specified event.