At a Glance: Recent Changes to Hong Kong Employment Law You Should Know About

Month

Legislative Change

Action point for employers

June 2021

Breastfeeding discrimination and harassment law came into effect on 19 June 2021.

The new law protects breastfeeding women against discrimination (direct or indirect) and harassment (i.e. engaging in unwelcome conduct towards or creating a hostile or intimidating environment for the breastfeeding woman) on the ground that she is breastfeeding.

Employers will be held liable for the discriminatory acts of their employees done in the course of their employment (even if they are done without the employer's knowledge or approval), unless they can show that they took reasonably practicable steps to prevent the employee from doing the acts.

For further details on discrimination law, please see our previous articles on "how to prevent discrimination in the workplace Hong Kong" and "Employment Law Changes in 2020 and what to expect in 2021".

• Arrange training for staff to understand the new changes to the law.
• Implement or review and update anti-discrimination and anti-harassment policies
• Establish a process for resolving discrimination complaints
• Consider and arrange appropriate facilities (e.g. a room with privacy, chair with back rest, table and refrigerator) for employees with breastfeeding needs

July 2021

The Employment Ordinance was amended to gradually increase statutory holidays from 12 days to 17 days. Starting from 2022, one statutory holiday will be added every two years:

• The Birthday of the Buddha (from 2022)
• The first weekday after Christmas Day (from 2024)
• Easter Monday (from 2026)
• Good Friday (from 2028)
• The day following Good Friday (from 2030)

For further details on statutory holidays, please see our previous article.

• Review and update employment contracts, employee handbook, payment systems and rosters to reflect the additional statutory holiday(s).

August 2021

The Immigration (Amendment) Ordinance 2021 came into effect on 1 August 2021. The maximum penalty for employing illegal workers had been increased from a maximum find of HKD350,000 and 3 years of imprisonment to HKD500,000 and imprisonment for up to 10 years.

For further details on employing foreign workers in Hong Kong, please see our previous articles.

• Review internal policies and procedures for obtaining and retaining evidence for an employee's right to work in Hong Kong
• For employees working under a working visa, keep an accurate record of the visa conditions and track the expiry dates of any visas, such that extensions can be applied for in good time.

May 2022

The Occupational Safety and Occupational Health Legislation (Miscellaneous Amendments) Bill 2022 was published.

The proposed bill sought to enhance occupational safety and health ("OSH") by increasing penalties for relevant offences:

General duty provisions to become indictable offences which can be tried at higher levels of Court; defendants may be liable to a fine of HK$10 million and two years' imprisonment (conviction on indictment) or HK$3 million and six months' imprisonment (on summary conviction)

• Various other OSH requirements would be recategorized into "minor", "serious" and "very serious". Maximum fines are proposed at HK$25,000, HK$100,000 and HK$400,000 (for employer-related offences) and HK$10,000, HK$50,000 and HK$150,000 (for employee-related offences)
• Time limit for prosecution of summary offence or an indictable offence tried summarily is proposed to be increased from six months to twelve months

• Review existing Occupational Safety and Health policies and identify any potential risk areas

June 2022

The Employment Ordinance was amended to support various anti-Covid measures.

In particular, employees who are absent from work to comply with mandatory testing, quarantine or isolation requirements are eligible for sick leave pay and protected from dismissal.

On the other hand, employers may be entitled to dismiss employees who fail to comply with legitimate vaccination requests.

For further details on anti-Covid measures, please see our previous articles.

• Review and update absence policy, taking into account employees who may be directly or indirectly affected by anti-Covid measures.
• Consider adopting a work from home policy (where possible) to ensure that business operations can proceed with as little disruption as possible.
• Where working from home is permitted, employers should ensure that their IT systems are secure to protect confidential data and prevent data breaches and have in place an IT policy to provide guidance to employees.In addition, employers should also check that their insurance covers accidents in home working situations.
• Understand the vaccination status of the workforce and develop a vaccination policy if necessary.
• Ensure that the employer has a data privacy policy to cover the collection, usage, storage and transfer of employees' personal data.

June 2022

A bill was passed to cancel the MPF offsetting mechanism, expected with effect from 2025. An employer will eventually not be allowed to reduce the amount of long service pay (LSP) or severance pay (SP) payable to a departing employee by drawing on its MPF contributions.

The maximum monthly wages for calculating LSP/SP (HK$22,500) an the maximum LSP/SP amount (HK$390,000) will remain unchanged.

• Familiarise themselves with the new regime
• Seek legal advice if necessary to ensure the employer plans ahead for compliance with the new law – in particular to cope with future financial needs