By Duncan Abate, Hong Tran and Jennifer Tam from law firm Mayer Brown
In this legal update are some Q&As on an employer’s obligation in dealing with a novel coronavirus outbreak including, can an employer quarantine staff and is an employee who has contracted novel coronavirus entitled to compensation?
Can I quarantine certain staff to certain parts of an office or send them to a different office?
It depends but is possible. An employer must be careful not to contravene the Disability Discrimination Ordinance (DDO). An employee with the novel coronavirus or suspected of having it will be a person with a ‘disability’ for the purposes of the DDO. Depending on the circumstances, an employer may ask an employee to work from a particular part of an office if it is to ensure his/her and/or other’s health and safety.
As to whether an employer can send an employee to work in a different office, that would also depend on the circumstances including the contract of employment (e.g. whether it provides that the employee is entitled to work at a particular location), the extent of the travel required and inconvenience suffered by changing the work location. For example, it may not be permissible to change an employee’s workplace from Hong Kong to a place overseas when the employee does not usually travel as part of his duties. Can I direct my employees to report suspected cases of the novel coronavirus?
Yes, in the event of a novel coronavirus outbreak, in our view, it would be lawful and reasonable to ask an employee to report if s/he suspects s/he has the novel coronavirus.
Can an employee lawfully refuse to attend work if there is a novel coronavirus outbreak?
It depends but is possible. An employee can only lawfully refuse to attend work if s/he reasonably fears for her or his health and safety by doing so. Section 10 of the Employment Ordinance (EO) entitles an employee to terminate his contract of employment without notice or payment in lieu if s/he reasonably fears physical danger by violence or disease which was not contemplated by his contract of employment expressly or by necessary implication. If an employer requires an employee to attend work in these circumstances, it is likely to be in breach of the Occupational Safety and Health Ordinance (OSHO).
Can I screen employees and customers before allowing them to enter the workplace?
Maybe. Depending upon the extent of the outbreak, the screening of employees and customers may be a reasonable step for an employer to take to reduce the risk of its employees being exposed to harm. However, depending upon technological and medical testing limitations, there may be logistical and privacy issues with undertaking any such screening in a timely and effective manner before gaining entry to the building.
Is an employee who has contracted the novel coronavirus entitled to compensation under the Employees Compensation Ordinance (ECO)?
Maybe. Unlike SARS and avian influenza A, the novel coronavirus is not currently classified as an occupational disease under the ECO for payment of compensation. However, section 36 of the ECO provides that an employee shall have the right to recover compensation under the ECO for a disease which is not a prescribed occupational disease if contraction of the disease amounts to a personal injury by accident arising out of and in the course of employment.
For the full version of this article refer to the Mayer Brown website