Proposed amendments the Employment Ordinance announced by the government on Tuesday, 8 February 2022

On 8 February 2022, the government announced a series of enhanced social-distancing rules toughest to date.

Unvaccinated persons will be banned from entering an additional six types of premises, namely shopping malls, department stores, religious venues, supermarkets, wet markets and hair salons under a "vaccine pass" scheme, which is to be launched later this month on 24 February 2022.From 24 February 2022 onwards, only persons who received at least the first dose will be allowed to enter regulated premises using the LeaveHomeSafe app and presenting their vaccination record.

Proposed Amendments 

It was also announced that the Chief Executive will push for the Executive Council to amend the Employment Ordinance (Cap. 57) (EO) to address potential conflicts between employers and employers over anti-epidemic measures.

A proposed amendment is to allow employers to dismiss unvaccinated employees who are unable to go to work due to the vaccine pass scheme and such dismissal would not be considered as an "unreasonable dismissal" under section 32 of the EO.

Another amendment is to prevent employers from dismissing employees affected by mandatory lockdowns of the estates they live in or are placed under compulsory home quarantine.  These employees will be eligible for sick leave, and their dismissal will be considered as "unreasonable dismissals" with legal consequences.

Discussion

The proposed amendments may have little impact on employees who are able to work from home remotely with the help of technology. However, employees whose work nature require face-to-face interactions, whose workplace falls within any of the regulated venues, or where working from home is not possible will be adversely affected by the proposed amendments, such as those working in the retail, food and beverage and other services industry.

Furthermore, the proposed amendments do not take into account employees who have a legitimate basis for not being vaccinated, such as having chronic or pre-existing medical conditions which deem them unsuitable to be vaccinated.

Given the draconian nature of the proposed amendments, it is likely that such amendments will be faced with strong opposition.  Nonetheless, these are only proposed amendments and a draft bill has yet to be drafted, consulted and properly debated in the Legislative Council.  It would be prudent for the government to conduct extensive consultation with interested parties to ensure legitimate exemptions are made available to eligible persons.
 
Our team at RPC are widely recognized as leading employment lawyers in Hong Kong. We are of the few specialist employment law practices in Hong Kong and we act for both employers and employees on contentious and non-contentious matters.

Please do not hesitate to contact our Partner and Head of the Employment Practice in Hong Kong, Andrea Randall (andrea.randall@rpc.com.hk / +852 2216 7208) for any queries regarding the issues raised in this article or any employment law related queries you may have. 

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