As a surge in new Covid cases overwhelms the region, the Hong Kong Government seeks to impose changes to the Employment Ordinance (Cap. 57) (the EO) to address employment-related issues arising out of the pandemic. The Employment (Amendment) Bill 2022 (the Bill) published on 25 February 2022 introduces a number of important changes, including:
A. The possibility of non-vaccinated employees being sacked for “being incapable of performing the employee’s work” (proposed section 32KB);
B. Absence from work due to compulsory testing or mandatory quarantine requirements not being valid reasons for dismissal (proposed section 32KA); and
C. Re-defining “sickness day” (proposed amended definition under section 2(1)).
A. Non-compliance with a “legitimate vaccination request” – Not unreasonable dismissal
Following the introduction of the Bill, unvaccinated employees who fail to “comply with a legitimate vaccination request” would not be considered to be unreasonably dismissed for being “incapable of performing” their job (proposed section 32KB). This is especially relevant to employers or employees who have been required or recommended by the government to be vaccinated because their place of work is defined as “specified premises” under the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation (Cap.599F) or by reason of their particular type of work.
“Specified premises” are places covered by the new vaccine pass arrangements set by the government under the Prevention and Control of Disease (Vaccine Pass) Regulation (Cap. 599L) in line with the city’s “Dynamic Zero” goal, and currently include a total of 24 types of premises (such as catering business premises, places of amusement and public entertainment, party rooms, sports premises and shopping malls).
Apart from complying with the requirements set out in section 1, Part 1 of Schedule 12 of the Bill, a key condition for the vaccination request to be “legitimate” is that employers must “reasonably believe” that persons with face-to-face contact with the employee at work will be (as opposed to “may be”) exposed to risk of infection if the employee contracts the disease (proposed section 2, Part 1 of Schedule 12). Under the Bill, reasonableness will be determined by considering the nature of the employee’s work and related operational requirements.
Not all employers can benefit from this new regime, however. Under the Bill (section 3(b), Part 1 of Schedule 12), exceptions are made for certain persons such as those with a specified medical exemption certificate, who are pregnant or breastfeeding, or hold a proof of discharge or recovery certifying that the employee was diagnosed as having contracted the disease within 6 months before the date on which the vaccination request is made.
B. Absence from work due to compulsory testing or mandatory quarantine requirements – Unreasonable dismissal
Despite being criticized for introducing “no jab, no job” provisions, the Bill in fact seeks to provide better protection to employees so that they cannot be validly dismissed for being absent from work when undergoing compulsory testing or mandatory quarantine requirements (proposed Part 1, Schedule 11).
C. Sickness day redefined and sickness allowance
Finally, the Bill provides that if an employee is absent from work by reason of complying with compulsory testing or mandatory quarantine requirements, such day(s) of absence shall be regarded as a “sickness day” under the EO and the employee is entitled to claim sickness allowance if (see proposed amendments to section 33):
- the sickness day falls on or after the day on which the amended EO is published in the Gazette;
- the period of the employee’s absence lasts for 4 or more consecutive days; and
- the employee can provide the relevant document (in hard copy form or electronic form issued by a public officer or anyone on behalf of the government) or electronic data which specifies the name of that employee (or information that could identify that employee), the type of restriction imposed, and the commencement date and expiry date of the restriction period imposed (proposed Part 2, Schedule 11).
For the purpose of determining if an employee is employed under a continuous contract under the EO, such day(s) of absence by reason of complying with compulsory testing or mandatory quarantine requirements shall not be regarded as breaking the continuity of the employment period (proposed paragraph 3(2)(ab) of the First Schedule).
If the employee is subject to compulsory testing or mandatory quarantine requirements due to the employee's own serious and willful misconduct, the employee will not be eligible for claiming statutory sickness allowance (proposed section 33(5)(ac)). What amounts to “serious and willful misconduct” will likely be subject to interpretation by the Labour Tribunal or the court when a dispute arises.
Overall, the proposed amendments to the EO if adopted provide welcome clarity for both employers and employees.
Our note only illustrates the statutory position following the amendments to the EO, however. Employers and employees are reminded to look to their own employment contracts under which their employment relationship is governed in order to ascertain their exact positions.