Employees who are absent from work due to COVID-control measures will be entitled to sickness allowance, and those who fail to comply with "vaccine pass" requirements can be dismissed legitimately.
After passing the third reading by Hong Kong’s Legislative Council (LegCo), the Employment (Amendment) Ordinance 2022 (Amendment Ordinance) has taken effect upon gazettal on 17 June 2022 (Friday).
The Amendment Ordinance aims at strengthening the protection of the employment rights and benefits of employees when they are absent from work due to their compliance with specific anti-epidemic requirements under the Prevention and Control of Disease Ordinance (Cap. 599), as well as encouraging employees to receive the COVID-19 vaccination.
Among the major changes it enforces, it stipulates that employees' absence from work due to their compliance with an isolation order, a quarantine order, or a requirement under restriction-testing declaration which imposes a restriction on movement, will be deemed as sickness day(s).
Thus, employees who have fulfilled the relevant criteria under the Employment Ordinance (EO) (Cap. 57) will be entitled to sickness allowance. In such cases, employees can produce a document issued by the government, or electronic data accessible in a manner prescribed by the government, to the employer as sick leave certificates in lieu of medical certificates issued by a registered doctor under current regulations.
Other provisions related to sickness allowance under the EO will remain unchanged.
The dismissal, or variation of the terms of the contract of employment, of an employee by reason of his/her absence due to compliance with the above-mentioned anti-epidemic requirements will be considered as an invalid reason. Affected employees can make claim for remedies against an employer for unreasonable dismissal and unreasonable variation of the terms of the employment contract.
The Amendment Ordinance also stipulates clearly the conditions to be met if an employer makes a COVID-19 vaccination request to his/her employee. When making the request, the employer needs to reasonably believe, having regard to the nature of the employee’s work and the related operational requirements, that if the employee contracts the specified disease, the persons with whom the employee may come into face-to-face contact when the employee performs the employee’s work will be exposed to the risk of infection.
If an employee is dismissed due to non-compliance with (except with sufficient medical reasons) the vaccination requirement of the "vaccine pass" scheme under Cap. 599L, or failing to produce proof of having been vaccinated on any COVID-19 vaccine recognised by the government to the employer within 56 days from the date of the making of the request, the dismissal will not be considered as unreasonable dismissal.
This amendment provides exemptions to certain employees, namely those:
- who are pregnant;
- who are breastfeeding;
- who are issued with a specified medical exemption certificate within the meaning of section 17 of the Vaccine Pass Regulation showing that it is unsuitable for the employee to get vaccinated during the compliance period; or
- who hold a specified proof of discharge or recovery certifying that the employee was diagnosed on a particular date as having contracted the specified disease; and that date falls within six months before the date on which the request is proposed to be made.
"The legislative amendments seek to reflect the policy intent so as to clarify the rights and obligations between employers and employees under the epidemic, and to strike an appropriate balance between protecting public health and preserving employees' rights and benefits," said a spokesperson for the Labour Department.
The Amendment Ordinance has no retrospective effect, but will have a sunset clause, to be repealed when the pandemic is under control and vaccination is no longer a matter of public health concern.
The amendment does not cover compulsory quarantine imposed on arrivals to Hong Kong from overseas.
For details, please visit the Labour Department's homepage or call its 24-hour hotline at 2717 1771.
Image / HKSAR Government Press Releases