Ask an expert: 5 questions on employee medical data

Recently, a bill introduced in US Congress received criticism for arguably invading employees' privacy and taking away their protection against discrimination based on medical conditions. In short, the bill would make it easier for employers to gather genetic data from workers and their families, and ask them to give up private medical information, such as their weight, their blood pressure and whether they are at particular risk of cancer.

Wanting to know more about the current situation in Hong Kong, Human Resources asked two experts to answer some questions about medical data, discrimination, and the law in Hong Kong.

1. Is there legislation that prevents Hong Kong employers from requesting or accessing (future) employees' medical data?

Sarah Berkeley, Partner at Simmons & Simmons, Hong Kong: "The Personal Data (Privacy) Ordinance (PDPO) regulates the collection and use of employees’ personal data in Hong Kong, including medical data. Additionally, there is a Code of Practice on Human Resource Management, published by the Privacy Commissioner for Personal Data, which provides guidance on the extent to which, and how, employers can request and access (future) employees’ medical data.

Medical information can only be collected by fair means, and only if it is for a lawful purpose and not excessive for that purpose. For example, an employer could not ask for medical information in order to refuse to hire applicants who it considered might be likely to take periods of sick leave, as this would be in contravention of anti-discrimination legislation.

Employees can refuse to provide medical information; but if they do, this could, for example, result in the employer not being able to assess whether they are fit to perform a particular role."

2. What are companies allowed to ask with regards to a candidate's health during an interview?

SB: "Companies should take care when asking any questions regarding a candidate’s health during an interview, to avoid breaching the PDPO and to minimise the risk of a subsequent claim by an unsuccessful applicant that he or she was not offered employment because they had a particular disability.

That said, companies can ask a successful candidate about their health at the time of making a conditional offer of employment, if:

• the information sought relates directly to the inherent requirements of the job;
• employment is conditional on successful completion of a medical examination; and
• the medical information is collected in a fair manner, and is not excessive.

Therefore if a role requires an employee to have a certain level of fitness, a company can ask a successful candidate to undergo a pre-employment medical examination, but should not collect more information than is necessary. For example, it may be necessary for the employer to be provided with the results of the examination, but not with details of the employee’s medical history."

Jennifer Van Dale, head of employment, Eversheds Hong Kong:  "The key point to remember is that questions should be aimed at determining whether the candidate can do the job, with or without accommodation, and not whether the candidate is "healthy". For example, if a candidate with a disability could do the job with a minor accommodation, then it would be unlawful not to hire him or her because of that disability."

3. How are companies in Hong Kong prevented from discriminating against or firing someone based on their health?

JVD: "This is covered in the Disability Discrimination Ordinance (DDO). The definition of "disability" is very wide under Hong Kong law and includes things ranging from short-term illness and injury to permanent disabilities.

It’s not even necessary to currently have a disability; the definition includes a disability that presently exist, previously existed, that may exist in the future, or that is imputed to a person.

Against that background, it is unlawful for an employer or potential employer to discriminate against an employee or candidate with a disability. "Discriminate" covers a myriad of behaviours related to things like promotions, transfers, training, benefits, services, and facilities, as well as dismissal, refusing to hire a disabled candidate, or subjecting them to another detriment.

There is an important exemption, however. If the person’s disability would prevent them from carrying out the inherent requirements of the position, or if the person could carry out those inherent requirements but only with an accommodation that would impose an unjustifiable hardship on the employer, then the employer would not be guilty of unlawful discrimination."

4. Do you think the legislation in Hong Kong needs updating?

SB: "The DDO provides important protections for employees (and future employees); but updating this piece of legislation would provide more balance between the rights of employers and employees. In particular, the DDO contains a very broad definition of "disability", which includes for example colds and flu, and also covers past, future, and imputed disabilities. In our view, this is overly broad and can lead to false claims by aggrieved employees who were ill or injured for only a few days or weeks."

JVD: "On the data privacy front, one glaring omission in Hong Kong’s legislation is around general privacy. Personal "data" is regulated and protected, but "privacy" that is not reduced to data is not as regulated.

For example, I received a call recently about a doctor who phoned a patient's employer and gave them all the test results over the phone instead of speaking to the patient/employee. This is a glaring breach of the individual's privacy, but because there is no "data" – no email, no fax, no voice mail recording – it is arguable that it is not governed by the PDPO."

5. In your opinion, should employers in Hong Kong be allowed to access or ask about (future) employees' medical information?

SB: "Employers in Hong Kong are allowed to ask about employees’ and future employees’ health - subject to data protection and anti-discrimination laws.  In our view, the current position strikes a fair balance between providing protection for employers and respecting an individual’s privacy.

Employers in Hong Kong can take steps to confirm whether a candidate will be capable of performing the role for which they are being considered."

JVD: "Employers hire people to fill a role or do a job. My view is that it is acceptable to ask "can you do this job?" or "Would you need any services, facilities or other accommodation to do so?" So long as the employer sticks to job-related questions, then it is acceptable. In most cases this would preclude genetic information, which in my view is private."

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