Lewis Silkin – Covid-19 – can employers in Hong Kong require their employees to be tested and vaccinated?

With a vaccination against coronavirus being rolled out in Hong Kong shortly, many employers in will understandably be eager to have their employees vaccinated in the hope of their workplace returning to some form of normality. This article explores some of the legal issues.

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Testing and Vaccination

Can you require an employee to take a corona test?

There is no statutory right under Hong Kong law for employers to require employees to undertake any medical tests, including COVID-19 tests. Therefore, although employers may ask employees to undertake a COVID-19 test, they cannot compel employees to do so if they refuse.

If the employment contract contains an express provision allowing the employer to direct an employee to attend medical examinations, the employer may potentially rely on this contractual clause to require the employee to undergo a COVID-19 test.

In the absence of any contractual right to compel an employee to undergo a test, an alternative basis is to treat a requirement to undergo the test as a ‘lawful and reasonable’ direction by the employer. Under common law, an employee is under a duty to obey lawful and reasonable directions by the employer. Given that employers are legally required to take reasonable care of their employees’ health and safety under common law and the Occupation Safety and Health Ordinance (“OSHO”), requiring employees to undertake COVID-19 tests could potentially be considered a ‘lawful and reasonable’ direction if, say, for example, employees are required to attend the workplace. If an employee refuses to undergo testing, an employer may consider taking disciplinary action for the refusal to obey a lawful and reasonable direction. However, whether disciplinary action can be justified is highly fact-sensitive and would depend on whether testing is deemed necessary in the circumstances.

It should be noted that if the Centre for Health Protection identifies an employee as part of a high-risk group or as a close contact of a confirmed case, the employee will be required by the government to undergo mandatory testing.

Can you make it a mandatory health and safety requirement for employees to be vaccinated and can you require employees to inform you of their vaccination status?

As mentioned above, employers are legally required to take reasonable care of their employees’ health and safety under common law and the OSHO. However, it is not clear whether requiring employees to be vaccinated would be considered a ‘reasonable’ step for employers to take to ensure employees’ health and safety. Whether implementing such a requirement would be considered reasonable will be highly fact-dependent and will depend on factors such as the risk associated with any particular workplace.

Requiring employees to inform employers of their vaccination status could potentially be considered a ‘lawful and reasonable’ direction, depending on the circumstances. If employees do inform employers of their vaccination status, the employer should ensure that they comply with the Personal Data (Privacy) Ordinance as such information would constitute personal data. In particular, the employer must inform employees that the purpose for collecting the data is to ensure health and safety in the workplace, and use the data collected solely for this purpose. The employer must also inform employees of the classes of person to whom the data may be transferred, and their right to request access to this data. Moreover, the employer must take precautions to protect the data from leakage or unauthorised access, and only retain the data for a period that is reasonable and necessary with regard to the purpose.

Can you pay for employees’ vaccinations or offer employees an incentive for getting vaccinated?

The Hong Kong government has announced that it will be launching in phases its territory-wide COVID-19 Vaccination Programme shortly to offer all Hong Kong residents COVID-19 vaccinations on a voluntary basis free of charge.

Employers may incentivise employees to participate in the Vaccination Programme, but they cannot compel employees to do so if they refuse.

What happens if an employee has religious or other objections to vaccination or cannot be vaccinated for medical reasons: can you dismiss an employee who refuses to be vaccinated, and can you prevent an employee who has not been vaccinated from coming to work, change their duties or otherwise alter their working conditions?

As mentioned above, employers are legally required to take reasonable care of their employees’ health and safety. If requiring employees to be vaccinated would be considered a ‘reasonable’ step for employers to take to ensure employees’ health and safety, but an employee refuses or objects to be vaccinated for medical reasons, proceeding to dismiss an employee on this ground may open the employer up to liability for indirect discrimination under the Disability Discrimination Ordinance.

If it is indeed reasonable for employers to require vaccination, a more reasonable response to an employee’s refusal or objection to being vaccinated for religious, medical or other reasons would be to change the employee’s place of work and/or duties accordingly. Such change should be undertaken with the employee’s express consent as it would constitute a change to the employment terms.

What are the potential discrimination and data privacy aspects of vaccination that employers need to be aware of?

Hong Kong anti-discrimination law protects the characteristics of sex, pregnancy, marital status, disability, family status and race. In requiring employees to undergo vaccination, employers should take care not to discriminate against employees on the basis of these grounds.

In relation to the data privacy aspects of vaccination, please see our response for question above.

Are there any specific provisions relating to testing or vaccination for posted workers (e.g. who is responsible for ensuring the employee is tested or vaccinated prior to a posting; can the receiving employer ask for testing or vaccination information; and are there sanctions for failure to test or vaccinate, and if so, on whom)?

In Hong Kong, there is no equivalent concept of a ‘posted worker’ similar to that in the EU. However, in relation to employees being seconded on a temporary basis to another country, there are no specific provisions in this regard in force in Hong Kong. It will be for the parties involved to determine the arrangements for any testing or vaccination.

How to keep workers safe in the office

What obligations are there on employers about how the workplace should be set up (e.g. social distancing, masks, numbers of employees on site, protective equipment, hygiene, cleaning, etc)?

Setting up the workplace

As previously mentioned, an employer has a duty to take reasonable care of employees’ safety and health and to provide and maintain a safe place of work for the employees in all circumstances.

In addition, the Centre for Health Protection has issued a Guideline to help prevent COVID-19 in the workplace. Although this Guideline does not have the force of law, employers are encouraged to follow it to the extent possible. Following the Guideline may help to demonstrate that employers have discharged their duty of care under statute and under common law.

It is therefore prudent for employers to implement various measures such as temperature checks, physical distancing, ensure the use of protective equipment such as face masks, quarantine measures in relation to employees whose family members or close contacts are infected, etc.

Are there separate rules for vulnerable employees or vulnerable groups (e.g. pregnant or elderly workers)?

Vulnerable employees

There is no definition of ‘vulnerable’ employees in Hong Kong, and therefore there are no separate rules for so-called ‘vulnerable’ groups.

Can you require an employee to come back to the workplace?

Back to the office

Generally speaking, an employee must comply with his or her employer’s reasonable instructions. Therefore, unless there is a valid basis for refusing to attend the workplace or s/he thinks the workplace is dangerous or hazardous to his or her health, an employer could mandate its employees to return to workplace, and a refusal to comply with the instruction to return to workplace may amount to a breach of contract.

However, employees may lawfully refuse to return to the workplace if they reasonably fear for their health and safety. This may be the case where it has been confirmed that another employee contracted the virus, but the workplace has not since been professionally cleaned or disinfected.

What is the recommended/official procedure for dealing with a suspected case of coronavirus in the workplace (including any official notifications you need to make and how you should communicate with the workforce). Can you require an employee you suspect is infected not to come to work?

Suspected case

There is no legislation nor guidance the employer is required to follow in terms of practical measures. We recommend that the employer should direct the concerned employee not to attend the workplace until they obtain medical clearance.

Bearing in mind the employer’s obligation to provide a safe workplace, we recommend that all employees who have been in close contact with the suspected person should be directed to work from home for at least two weeks. Employers should also clean and disinfect the workplace.

The employer can require an employee not to come to work until s/he obtains medical clearance if it suspects s/he is infected.

Official notification

There is no express obligation to notify government authorities that an employee has tested positive. However, employers should cooperate with the Department of Health if investigation is conducted to trace contact.

If an employee contracts or suspects having contracted COVID-19 by accident arising out of and in the course of their employment, the employer is required to notify the Labour Department of the ‘injury’, to allow the employee to bring a potential claim under the Employee Compensation Ordinance.

Communicating to the workforce

Employers should act promptly as soon as they learn there is a confirmed case, and communicate in an open and transparent manner. However, employers should not disclose the identity of the infected employee to avoid any breaches of the Personal Data (Privacy) Ordinance. Employers should give assurance that they will take all reasonable steps to maintain a safe and healthy workplace for employees and list out the steps that will be taken to clean and disinfect the workplace. Employees should be reminded to assess their own potential COVID-19 symptoms daily.

When and how can an infected worker return to work?

Return to the work after recovery

There is no formal procedure to be followed by employers in Hong Kong. We recommend that an infected worker should only return to work if he/she satisfies the discharge criteria set out by the Centre for Health Protection (i.e. two negative test results or a positive test result for SARS-CoV-2 antibody, and that his/her clinical conditions have improved and he/she is without a fever).

How to organise homeworking for the long term

‘Workplace’ is defined broadly under the OSHO to include ‘any place where employees work’ with limited exceptions and which can include the employee’s home if they are working from home.

Rights under the Employee Compensation Ordinance: Under the Employee Compensation Ordinance, employers are liable to pay compensation to an employee who suffers a personal injury by an accident which ‘arises out of and in the course of employment’. Therefore, if an employee sustains injury in the course of work when he/she is working from home, employers may be liable to pay compensation to the injured employee. Although this issue is yet to be tested in the Hong Kong courts, there are a few Australian authorities affirming the position that employers are liable to pay compensation to employees who sustain injury in the course of work while working from home.

In the circumstances, employers must both provide an adequate system and ensure that employees follow it, through management, instruction, incentivisation and ultimately, discipline.

Provision of Equipment and Reimbursement: With respect to the provision of equipment (such as a computer or printer), employers could either provide necessary equipment to employees, or allow employees to use their own equipment at home.

Further, employers should reimburse employees for the business and operational costs incurred as a result of working from home (especially when the employment contract provides so), and failure to do so may leave room for an argument by the employee that the employer is either in breach of the employment contract, or that the costs incurred, if not reimbursed, would be an offset against earned wages, and therefore result in deduction of salary. If so, the employee may have potential claims for constructive dismissal and/or unreasonable variation of employment terms.

Employees do not have the legal right to request long-term homeworking. Therefore, unless there is a valid basis for refusing to attend the workplace or an employee thinks the workplace is dangerous or hazardous to his/her health, employers could refuse a request, and a refusal to comply with the instructions to return to workplace may amount to a breach of contract.

Provided that an employer has taken reasonable measures to provide for the health and safety of its employees, in the absence of any specific grounds for refusing to return to work other than general concerns about the presence of the virus in Hong Kong, an employer can legally require an employee to attend the workplace, and it is unlikely that the employees’ requests to work from home permanently based on concerns about coronavirus would be allowed.

Note that we think it is unlikely that employees will acquire the right to work at home, even if they have done it for a certain period of time.

If an employee wants to work in a different country to that specified in their employment contact as a result of COVID-19, what will the employer need to consider in terms of immigration, local employment law, social security, tax, data privacy, health and safety measures etc?

Immigration: Employers should take into account whether an employee has the right to work in the relevant jurisdiction. Employers may also need to consider any issues that could arise on the employee’s return to Hong Kong. For instance, whether there are any restrictions on entering Hong Kong.

Employment law: Employers would need to continue to comply with their obligations under the employee’s Hong Kong contract (e.g. provision of salary, annual leave, holidays, sick leave allowance, etc). An employer would also need to be cautious as to whether local employment laws and regulations of the host country would also apply to the employee. Generally speaking, the longer an employee works in a different country, the higher the risk of the employee acquiring rights in that country. This may include minimum wage restrictions, paid annual holidays, statutory maternity / paternity entitlements and rights on termination. As previously mentioned above, if an employee suffers a personal injury by accident which ‘arises out of and in the course of employment’, the employer may be liable to compensate the employee. This would apply regardless of whether he/she is performing his/her duties in Hong Kong or abroad. Employers should also ensure that they comply with any local health and safety requirements.

Social security: Whilst Hong Kong does not have a social security system, most employers and employees are required to make contributions to a mandatory provident fund (MPF) which is a regulated privately managed retirement fund. Where mandatory contributions are being made to an MPF, arrangement for the employee to work abroad will not affect the contributing obligations of the employer or the employee.

Tax: The host country may have taxing rights over the employment income that the employee earns while physically working in that country. However, if there is a double taxation treaty (DTT) between Hong Kong and the host country, the employee will be subject to income tax of the host country only if certain conditions are satisfied. The DTTs that Hong Kong has entered into typically grant taxing rights on employment income to a host country when an employee is present in that host country for 183 days in any 12-month period. The employee would also generally remain subject to salaries tax in Hong Kong if their employment is considered to be ‘Hong Kong employment’. Whether the employee would fall under ‘Hong Kong employment’ is determined by the Inland Revenue Department and they will consider various factors, such as where the employment contract is negotiated, concluded and enforceable; where the central management and control of the employer is; and where the employee’s renumeration is paid.

Data Privacy: There are currently no restrictions on the transfer of personal data outside of Hong Kong, as the cross-border transfer restrictions set out in section 33 of the PDPO have not yet come into force. However, the Privacy Commissioner has published non-binding best practice guidance that encourages compliance with section 33 of the PDPO, which prohibits the transfer of personal data to a place outside Hong Kong unless at least one condition from a list of conditions is met. One such condition is that “the individual has consented in writing to the transfer”.

Author(s)/Speaker(s): Catherine Leung, Tanya Mirchandani,