Decrees, orders or guidelines in effect and pertaining to reopening facilities.
The Hong Kong Special Administrative Region Government (the “HKSAR Gov”) has gradually allowed resumption of operation of schools (by phases from 5 May), amusement game centres, fitness centres, places of amusement, places of public entertainment such as cinemas, bars or pubs, mahjong-tin kau premises, beauty parlours and massage establishments (from 8 May), bathhouses, “party rooms”, karaoke establishments, and clubs or nightclubs (from 29 May), and their operations are subject to conditions to promote social distancing. Most of the recreational facilities such as sportsgrounds and playgrounds have remained closed as of mid-June. Details of some of the guidelines are set out in Question 4.
Optimal approach to keep track of the latest updates.
The website https://www.coronavirus.gov.hk/eng/index.html has been set up to provide updates on local infection situation, videos of government press conferences and health tips for citizens etc.
Government subsidies and special relief resources allocated to support employers, and workers, in their efforts to maintain employment and pull through the crisis.
The HKSAR Gov had announced a series of measures which include in particular an Employment Support Scheme to (i) subsidize employers who have been making mandatory provident fund (“MPF”) contributions for employees to avoid massive layoff in the labour market. Subject to a cap of HK$18,000, such subsidy is payable to employers and calculated based on 50 per cent of the corresponding employee’s monthly salary and shall be provided for a period of six months, subject to the employer’s undertaking to spend all the wage subsidies on paying wages to the employees and not to lay off; (ii) provide a one-off subsidy to self-employed persons who made MPF contributions; and (iii) support the unemployed by a temporary relaxation to the asset limits of the Comprehensive Social Security Assistance Scheme. Also, the HKSAR Gov had announced proposals on providing a one-off relief grant to sectors which have been identified to have been severely affected by COVID-19, including passenger transport and aviation. Additionally, the HKSAR Gov will extend for three months the deadline for payment of tax due in April to June 2020.
Requirements mandated by law or any official guidance.
- The HKSAR Gov, by virtue of its powers under section 8 of the Prevention and Control of Disease Ordinance (Cap.599), has announced public health emergency regulations including:
- The Compulsory Quarantine of Certain Persons Arriving at Hong Kong Regulation (Cap.599C) and the Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places Regulation (Cap.599E), which place a person who arrives at Hong Kong from a place (i) in China other than Hong Kong, or (ii) outside China, under quarantine for a period of 14 days beginning on the day of arrival if the person has stayed in a specified place on or 14 days before the day of arrival. Cap.599C and Cap.599E are currently set to expire at midnight on (i) 7 July 2020, and (ii) 18 September 2020, respectively.
- The Prevention and Control of Disease (Requirement and Directions) (Business and Premises) Regulation (Cap.599F), which enables specific directions to be set in relation to the catering business and other scheduled premises such as fitness centres and karaokes. As of June 19, catering premises are required to implement measures to promote social distancing by maintaining at least 1.5 metres between tables or by making other partition arrangements. A person must wear a mask except when consuming food or drink on the premises; body temperature screening of persons entering the premises shall be conducted and hand sanitizers must be provided. More restrictive social distancing controls apply to bars and pubs.
- The Prevention and Control of Disease (Prohibition on Group Gathering) Regulation (Cap.599G), which, as of June 19, save for stated exceptions, prohibits group gatherings with over 50 persons in public.
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
Employers has a duty to, so far as reasonably practicable, ensure the safety and health at work for all employees. In Hong Kong, employers typically maintain social distancing policies (e.g. by having virtual meetings, work-from-home arrangements) and arrange disinfection procedures to take place regularly. In addition, if any employee is found to have developed fever or respiratory symptoms, employers may require such employees to stay home and report on whether they are infected.
Policies and procedures for telework once the business reopens.
There are no mandatory guidelines or regulations on this aspect.
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
Where an employee has contracted the disease, his employer should grant him sick leave in accordance with the Employment Ordinance (Cap.57) and the relevant employment contract. Where an employee is subjected to quarantine, but does not contract any disease during quarantine and therefore no sick leave being granted, the Employment Ordinance does not provide for wage arrangements in such circumstances. The HKSAR Gov encourages employers to be considerate and show understanding to such employees’ situation and make flexible arrangements, including where practicable allowing employees to work from home or granting paid leave to them.
Employees who fear infection and refuse to work.
The Employment Ordinance does not provide for absence from work out of fear of possible infection. However, it requires an employer not to assign to a pregnant employee duties injurious to her pregnancy if she can produce a medical certificate with an opinion indicating her unfitness to do such work. In view of the special situation, the employer should, as far as possible, work out with the pregnant employee mutually agreeable arrangements.
If an employee unreasonably refuses to work, it may be a ground for summary dismissal by the employer.
Disclosure of employees who are infected.
Employers do not have a statutory duty to report confirmed or suspected cases of infection. As Employers have responsibilities to protect the health of their employees and visitors, it is generally justifiable for employers to collect temperature measurements or limited medical symptoms of COVID-19 information of employees and visitors solely for the purposes of protecting the health of those individuals. The data collected should be necessary, appropriate and proportionate and must not be kept for longer than may be reasonably required. Personal data collected for fighting or combatting COVID-19 must not be used or disclosed for other unrelated purposes, unless express and voluntary consent is obtained from the individuals concerned or exemptions under the Personal Data (Privacy) Ordinance apply. Disclosure of the name and personal particulars of an infected employee is generally considered as unnecessary and unproportionate use of personal data.
To what extent can employers implement the following cost-reduction strategies as a result of COVID, and what are the primary limitations on each?
There is no provision under the Employment Ordinance on no pay leave and it remains for the parties to reach a mutually agreeable arrangement. If an employee’s remuneration depends on his being provided by the employer with work, and no work is provided to him and no wages is paid for more than half of the total working days in any four consecutive weeks or one-third of the total number of normal working days in any 26 consecutive weeks, he shall be taken to be laid off and may be entitled to severance payment.
- Salary reductions.
Salary reduction is prohibited under the Employment Ordinance save for certain specific exceptions. Failure to pay wages on time willfully and without reasonable is an offence. That said, an employer may reach an agreement with the employee for the variation of terms of employment including a change in salary level.
The redundancy laws of the Employment Ordinance will apply. Eligible employees will be entitled to statutory severance payment and all employees made redundant shall be entitled to termination payments under the statue and their own employment contracts. Any decision to terminate an employee’s employment should never infringe any anti-discrimination ordinances.
- Facility closure.
The change in work location may, depends on the circumstances, amount to a material change of the terms of employment and require the employee’s consent.
Tips, recommendations and common pitfalls.
In light of the challenges brought by COVID-19, employment policies should be transparent, up to date and readily accessible to employees to avoid unnecessary disputes. Employers are encouraged to be understanding and considerate to the individual employees’ situation, and make flexible arrangements.
If you have any questions, please contact the following representative:
Dorothy Siron, Partner
Zhong Lun Hong Kong
+852 2298 7620