Matthew Durham registered foreign lawyer, and Kritika Sethia Associate, Gall Hong Kong explain just how the Hong Kong's governments' tightened Covid-19 restrictions affect employers and employees alike.
The Hong Kong Government announced that effective from 27 October 2021, the discharge criteria for confirmed Covid-19 patients will be tightened. They have taken the position that patients who have recovered from the virus may still be carriers for approximately 14 days. Accordingly, to prevent the spread of the virus, after being discharged from hospital, patients will be subject to a further 14 day period of isolation and health monitoring in a government isolation facility (North Lantau Hospital Hong Kong Infection Control Centre). The specific press release can be accessed here.
Potential Issues Raised for Employers and their Staff
This new requirement raises several important issues including:
- Should absence during the enforced isolation period be treated as sick leave?
- Do employees have a right to be paid?
What Does the Employment Ordinance (“EO”) Say?
Under the Employment Ordinance (“EO”), individuals under a continuous contract of employment are entitled to be paid sickness allowance provided they have accumulated sick leave days (i.e., 2 days per month for the first 12 months and 4 days per month thereafter up to a maximum of 120 days), and they take sick leave for four or more consecutive days supported by a medical certificate in the required form. During the time an employee is on statutory sick leave, it will amount to a criminal offence for an employer to terminate the employment contract (except for summary dismissal) on a paid sickness day.
If employees are diagnosed with COVID-19, there should be no issue with their absence being treated as paid sick leave, provided that they have sufficient accrued sick leave days to cover the relevant period of absence. However, relatively new employees or those who have taken recent sick leave may have limited entitlements.
What About the Additional 14 Day Isolation Period?
For the additional 14 day isolation period the issue of sick leave and remote working arises. Employees will have been discharged from the treatment hospital and transferred to the isolation facility. If they no longer have symptoms or are affected by illness, will they be able to work remotely? It is unclear what the conditions will be like in the isolation facility. If individuals are able to work from the facility, and the employer is comfortable for them do so, this would enable employees to resume their role and be paid. If remote working is not possible or practical – for example, due to the nature of the employee’s role – the question is whether or not this period should also be treated as paid sick leave. It is unclear whether individuals will receive any form of medical certificate to cover this isolation period.
Adopting an Empathetic Approach
The health concerns, enforced isolation and uncertainty over employment and salary will no doubt cause anxiety and stress for affected individuals. While companies have legitimate business concerns such as productivity and business continuity, they may wish to adopt an empathetic approach and to continue paying employees during the isolation period, even if they are not able to work remotely and/or do not qualify for paid sick leave. An alternative would be to treat the isolation period as unpaid leave or paid annual leave, although in either case this seems somewhat harsh.
Finally, employers should also check their insurance policies to determine whether they have coverage of a scenario such as this where employees are absent and unable to work due to circumstances beyond either their or the company’s control.
Lead image / supplied GallHK