The Employment (Amendment) Bill 2022 and what it means in light of the potential citywide lockdown

In an attempt to further curb the soaring number of daily cases of coronavirus infections, in addition to the vaccine pass scheme, Hong Kong may be facing its first citywide lockdown later this month.

In light of these anti-epidemic measures, the Employment (Amendment) Bill 2022 (the "Bill") was gazetted on 25 February 2022, which sought to strike a balance between implementing various anti-epidemic measures to protect public health and preserving employees' statutory rights and benefits

The Employment (Amendment) Bill 2022

The Bill proposed two main amendments to the Employment Ordinance, namely:

i. Employees absent from work due to compliance with the statutory restriction on movement such as mandatory testing, quarantine or isolation are (a) eligible for sick leave pay and (b) protected from dismissal; and

ii. Employers may be entitled to dismiss employees who fail to comply with a legitimate vaccination request.

(i) Absence due to compliance with the statutory restriction on movement

The Bill proposes to award sickness allowance to employees who have been absent from work due to compliance with a restriction on movement imposed under the Prevention and Control of Disease Ordinance (Cap. 599), namely:

i. Employees subject to a quarantine or isolation order, such as confirmed COVID-19 cases placed in isolation, or close contacts of confirmed COVID-19 cases subject to mandatory quarantine orders;

ii. Employees subject to a compulsory testing notice or order; or

iii. Employees within a premises subject to a restriction-testing declaration. 

Upon the enactment of the Bill, eligible employees will be entitled to statutory sick leave pay if they:

i. Can produce official certification that they have been subject to any of these restrictions; and

ii. Have been absent for at least four consecutive days due to these restrictions. 

The Bill also prohibits employers from dismissing or varying the employment terms of employees who have been absent from work due to any of these restrictions. 

(ii) Non-compliance with a legitimate vaccination request constitutes a valid reason for dismissal

The second amendment proposed in the Bill is to allow employers to dismiss employees who fail to comply with a legitimate vaccination request.

A legitimate vaccination request must be made in writing and must be made to all employees carrying out the same or similar job duties. 

Legitimate vaccination requests can be issued to:

i. Employees working in premises subject to vaccine pass regulations, i.e. where at least one dose of COVID-19 vaccine is required (the dosage requirement is expected to increase over time);

ii. Employees performing work subject to a vaccination requirement or recommendation by the Government;

iii. Employees who are reasonably believed to expose other persons to the risk of infection if they contract COVID-19 in performance of his/her work duties, such as client-facing jobs including salespersons, waiters, etc.

An employee must produce a relevant record of vaccination within 56 days from the date of the legitimate vaccination request, and failure to do so constitutes a valid reason for dismissal.  This means that unvaccinated employees may be dismissed, unless they fall within the following exemptions:

i. Employees exempted under the vaccine pass scheme; 

ii. Employees who are pregnant or breastfeeding;

iii. Employees issued with a medical exemption certificate; or

iv. Employees holding a proof of discharge or recovery issued by a person specified by the Director of Health within six months before the date of the vaccination request.

Potential Lockdown

In view of the widespread mandatory quarantine orders and the possible citywide lockdown, employers are encouraged to adopt a flexible and understanding attitude in respect of work arrangements and handling their relationship with employees. Employers that do not have a work from home policy in place should consider adopting this approach where possible (particularly during any lockdown) and putting in place the appropriate technology to implement this policy. Employer should also plan ahead in the event of a lockdown and make appropriate manpower arrangements to ensure that business operations can proceed with as little disruption as possible.

For employers implementing work from home arrangements, they 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.  Where employers already have an IT policy, they should remind employees of its contents and their duty to adhere to its provisions and potential consequences of breach of its provisions. 

Finally, employers are reminded of their duty of maintaining a safe working environment for employees even where employees are no longer working in the office.  This is because employers still owe such a duty of care to employees regardless of whether the employee is working in the office premises.  Given this duty; employers should also check that their insurance covers accidents in home working situations in the unfortunate event of an accident.

Take away

In response to the ever-changing pandemic situation in Hong Kong, the Government is likely to update the implementation of the Bill and announce details of the lockdown in due course.  Employers should continue to closely monitor such developments and seek legal advice when in doubt. In the meantime, employers should consider putting a plan in place in event of a lockdown or a quarantine order.

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. 

All material contained in this article is provided for general information purposes only and should not be construed as legal, accounting, financial or tax advice, or as opinion to any person or specific case. RPC accepts no responsibility for any loss or damage arising directly or indirectly from action taken, or not taken, which may arise from reliance on information contained in this article. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have.