Proposed Amendments to the Employment Ordinance under the Employment Amendment Bill 2022
On 25 February 2022, the Government published the Employment (Amendment) Bill 2022 (“Bill”) which sets out certain proposed amendments to the Employment Ordinance (Cap. 57) (“EO”). As alluded to by the Government earlier, these changes aim to minimise employment disputes which may arise from COVID-19 related matters.
The primary objectives of the Bill are:
- to provide that it is not a valid reason to dismiss or vary the terms of the employment contract of any employees whose movement is restricted due to compliance with a requirement imposed under the Prevention and Control of Disease Ordinance (Cap. 599) (“affected employees”) on the ground of them being affected employees;
- to provide that (subject to limited exceptions) it is a valid reason to dismiss or vary the terms of the employment contract of any employees who refuse to accede to a legitimate request for proof of vaccination;
- to clarify the definition of a statutory sickness day; and
- to provide for statutory sickness allowance to be paid to affected employees under certain circumstances.
According to the Government spokesperson, the Bill will be introduced into the Legislative Council as soon as possible and will come into operation once published in the Gazette.
The key changes introduced by the Bill are summarised as follows.
Dismissal of unvaccinated employees or variation of their employment terms
If an employee (subject employee) fails to comply with the employer’s “legitimate vaccination request”, the subject employee will be regarded as being incapable of performing work of the kind which they were employed to do, which is a valid reason for dismissal or variation of the terms of the employment contract pursuant to section 32K(b) of the EO.
A legitimate vaccination request is defined in the new section 32KB(2) of the EO, and must comply with the following 4 requirements.
Requirement 1 – Form of the request
The request must be made in writing.
Requirement 2 – Scope of the request
| Condition | Scope of request |
| a. If the place of work is situated in any premises to which the vaccine pass arrangements apply | Relevant employees are requested to produce, within 56 days from the date of the request, proof of compliance with the relevant vaccination requirements |
| b. If the Government imposes a requirement or makes a recommendation that persons who perform a particular kind of work must or should be administered with certain dose(s) of vaccine, which applies to the employees | Relevant employees are requested to produce, within 56 days from the date of the request, proof that they have been administered with the relevant number of dose(s) of vaccine |
| c. If neither of a and b above applies (i.e. the vaccine pass arrangements do not apply to the place of work and no Government requirement or recommendation in relation to vaccination applies to the employees) | Relevant employees are requested to produce, within 56 days from the date of the request, proof that they have been administered with at least one dose of vaccine |
Requirement 3 – Recipient of the request
The request must be made to (i) the subject employee; and (ii) any other employee who performs work of a nature which is the same as or similar to that of the subject employee’s work.
But the request must not be made to certain employees, summarised as follows:
| Condition | Excluded employee |
| a. If the place of work is situated in any premises to which the vaccine pass arrangements apply or b. If the Government imposes a requirement or makes a recommendation that persons who perform a particular kind of work must or should be administered with certain dose(s) of vaccine, which applies to the employees | Any employee exempted from the vaccine pass arrangements, e.g. those who can provide a specified medical exemption certificate |
| c. If neither of a and b above applies (i.e. the vaccine pass arrangements do not apply to the place of work and no Government requirement or recommendation in relation to vaccination applies to the employees) | Any employee who:
|
Requirement 4 – Employer’s reasonable belief
When making the request, the employer must reasonably believe, having regard to the nature of the subject employee’s work and the related operational requirements, that if the subject employee contracts Covid-19, persons who may come into face-to-face contact with the subject employee when the subject employee performs work will be exposed to the risk of infection.
Protection offered to affected employees
Dismissal and variation of terms
An affected employee’s absence from work due to their compliance with any “Cap. 599 requirements” will not constitute a valid reason for dismissal or variation of the terms of their employment contract. Such requirements are requirements which impose a restriction on movement, as set out in the new Schedule 11 to the EO and would include instances where, for example, an employee is subject to (i) compulsory quarantine or isolation as close contacts; (ii) a restriction-testing declaration; or (iii) a compulsory testing notice, but would generally exclude instances where the employee is subject to quarantine as an inbound traveller.
Sickness day and sickness allowance
The definition of statutory sickness day will be amended to expressly include a day on which an employee is absent from work by reason of their compliance with a Cap. 599 requirement. Statutory sickness allowance may be payable in respect of such absence, unless the employee (i) is subject to the Cap. 599 requirement due to their own serious and wilful misconduct; and/or (ii) would not have worked had they not been absent from work due to compliance with the Cap. 599 requirement. It is at this stage unclear what circumstances would fall within (i).
In order to be eligible for statutory sickness allowance:
- the employee must have accrued sufficient number of statutory sickness days;
- the period of absence must last for 4 or more consecutive days; and
- the employee must produce the relevant document or electronic data which shows the name of the employee (or information that can identify the employee), the type of restriction imposed and the commencement and expiry dates of the relevant restriction.
(Please note that the relevant amendments do not have retrospective effect, which means that employees are only eligible for statutory sickness allowance pursuant to the amended provisions with respect to any sickness day which falls on or after the date on which the amendments come into effect.)
Annual leave
If an employee is absent from work due to a Cap. 599 requirement during a period of statutory annual leave, such days can only be counted as statutory annual leave days if the period of absence commences after the commencement of their statutory annual leave period. (This is in line with the position in relation to statutory sickness days under the current version of the EO.)
Continuity of employment
Where an employee is absent from work due to their compliance with a Cap. 599 requirement, such absence would not break the continuity of the employee’s employment for the purposes of determining whether they are employed under a “continuous contract” under the EO.
Key practical implications for employers
- In order to be able to rely on an employee’s refusal to comply with a vaccination request as a reason for dismissal or variation of the terms of employment, an employer should ensure that the request is a “legitimate vaccination request” which complies with the 4 relevant requirements summarised above.
- If an employer terminates an affected employee’s employment or varies any term of their employment contract by reason of their absence from work due to their compliance with a Cap. 599 requirement, the dismissal or variation will be unreasonable. In such case, the employee can bring a claim for unreasonable dismissal (subject to the employee being employed under a continuous contract for not less than 2 years) or unreasonable variation of employment terms, as applicable, and a court or the Labour Tribunal may order reinstatement or re-engagement (subject to the consent of both the employer and employee) or an award of terminal payments.
- Statutory sickness allowance may be payable to an employee who is absent from work in order to comply with a Cap. 599 requirement. Employers should bear in mind that they are legally prohibited from dismissing an employee on any day in respect of which statutory sickness allowance is payable other than by way of summary dismissal.
