Hong Kong: The Re-opening Playbook – COVID-19 – A Returning Workforce: Key Employer Considerations

Government Orders

Hong Kong did not experience a city wide “lock-down” in the same way as many other cities/jurisdictions are currently experiencing.  As such, the Hong Kong government never issued any specific orders requiring employers to implement a work from home or similar policy.

On March 21, 2020, the Hong Kong government announced that it would implement special work arrangements (i.e. work from home) for civil servants (except those performing emergency or essential public services) in a bid to reduce social contact, and urged private sector employers to adopt similar flexible work arrangements for their employees where practicable to align with the government strategy to combat the spread of COVID-19.

Notwithstanding that there is no legal requirement for employers to implement work from home arrangements or measures, employers are under a common law duty to take reasonable care of their employees’ safety and to provide and maintain a reasonably safe place of work for their employees. In light of such obligations and to minimize the risk of the spread of COVID-19 in the workplace, over the past few months, many employers in Hong Kong have implemented social distancing measures such as work from home arrangements or split work force arrangements.

Separately, from March 29, 2020, the Hong Kong government has prohibited any group gathering of more than four persons in any public place until May 5, 2020. An exemption applies to group gatherings at a workplace for the purposes of work (but not in public places). Employers should advise employees who are working from home/ working remotely that they should not arrange for any face-to-face business meetings with more than four people in public premises, such as in coffee shops. In addition, taking into account the narrow scope of the prohibition, employers should advise employees only to return to the office for the purposes of work and not to socialize in groups of more than four people in the workplace. Any person who participates in a prohibited group gathering or knowingly allows the taking place of such gathering is liable to a maximum penalty of HKD 25,000 and six months’ imprisonment. A person who only participates in a prohibited group gathering may discharge liability for the offence by paying a fixed penalty of HKD 2,000.

Employers will therefore need to take into account any government imposed social distancing measures that are in place when considering flexible or split-office work arrangements, or when considering whether to resume business as usual.

Timing

Employers that have implemented work from home arrangements will need to evaluate whether they should re-open the office using a phased approach, or whether to introduce staggered schedules for the workforce or some other method. This decision will ultimately depend on factors such as location, the size or type of the business, the feasibility of such arrangements, the health status of employees and taking into account specific employee concerns.

Workplace Safety & Prevention Strategies

As mentioned above, employers have a common law duty to provide and maintain a reasonably safe place of work for employees. In addition, under the Occupational Safety and Health Ordinance, employers must ensure the safety and health at work of all of its employees as far as reasonably practicable. It is therefore prudent for employers to implement various measures such as physical distancing, ensure the use of protective equipment such as face masks e.g. for public facing employees and other counter-measures to avoid and/or minimize the spread of COVID-19 within the workforce. This will necessitate policies and practices regarding:

• Temperature checks and other general health declaration measures
• Social distancing
• Quarantine measures in relation to infection, travel or infected family members
• Continuation of regular sanitation measures around the workplace; and
• The use of personal protective equipment, depending on the nature of the job.

In addition to the above, employers should carefully consider information provided by the Hong Kong government on the prevention of COVID-19 in the workplace: Centre of Health Protection’s interim advice.

Temperature Checks and Mandatory Disclosure Requirements

When staff return to the office and while the current global health crisis continues, employers should consider continuing to implement certain temperature testing and other health declaration procedures (e.g. detailing recent travel history or COVID-19 symptoms) for employees in order to ensure workplace safety.

Temperature Checks

Employers are generally permitted to implement temperature checks or similar health declaration measures to minimize the spread of COVID-19 within the workplace. An employer may reasonably deny access to the workplace for employees who do not comply with these measures on the basis that the employer has an obligation to ensure the safety and health of its employees. Employers should bear the costs of temperature testing, and testing should be limited to testing whether employees have symptoms of COVID-19.

Similarly, it would be reasonable for employers to require employees to disclose to the employer if they are a “risk-factor” (i.e. if they have symptoms of COVID-19, have been in contact with a confirmed COVID-19 case, or have recently visited a high risk area).

Employers should develop clearly communicated policies on what and when an employee should disclosure such information to the employer, and the employer should carry out a risk assessment if it becomes aware that an employee is in fact a risk factor.

For employees who are confirmed cases of COVID-19, employers should bear in mind that they will be suffering from a “disability” within the meaning of the Disability Discrimination Ordinance (Cap. 487). However, the DDO contains an exemption such that nothing in the DDO shall apply to a person who discriminates against another person with a disability if—

(a) that person’s disability is an infectious disease (such as COVID-19); and

(b) the discriminatory act is reasonably necessary to protect public health.

Therefore, an employer may be justified in taking action against an employee who is suffering from COVID-19 if, for example, the employee unreasonably refuses to keep away from the workplace or refuses to comply with quarantine measures as it is likely that such action is reasonably necessary to protect public health. (Simply terminating the employment contract of someone who has COVID-19 solely for that reason without any non-cooperation on the part of the employee, however, is unlikely to be justified.)

In addition, employers should be mindful of their obligations as a ‘data user’ under the Personal Data (Privacy) Ordinance (Cap.486). In particular, on or before the collection of personal data, employers are required, among other things, to explicitly inform employees of the purpose for which the personal data collected is to be used and the classes of person to whom the personal data may be transferred. Additionally, employers must ensure that personal data collected is adequate and not excessive in relation to the purpose for which it is collected.  Measures taken to collect personal data should be necessary, appropriate and proportionate.

For further detail, please refer to a statement from the Privacy Commissioner on employer collection of personal data in light of COVID-19:

https://www.pcpd.org.hk/english/media/media_statements/press_20200330.html

COVID-19 Testing

While employers may want employees to undergo COVID-19 testing, employers should note that there is no statutory right for employers to require this. Employers therefore cannot require employees to be tested for COVID-19 unless employees expressly agree or there is an express contractual right in the relevant employment contracts for the employers to do so (which is unlikely). Even then, employers cannot force their employees to undergo COVID-19 testing against their will.

Managing Employee Concerns about Returning to the Workplace

At this time, employers should be mindful of potential mental health issues faced by employees during this time of heightened anxiety, and should remain sensitive to employee concerns.

In the event employees have concerns about returning to the worksite, it would be prudent for employers to discuss with employees to better understand their concerns. For example, employers should be sensitive to the fact that while workplaces may be reopening across Hong Kong, schools in Hong Kong remain closed at the moment. It is also likely that when schools do resume, a staggered approach to starting may be adopted based on the academic year of students. At the same time, many schools are implementing on-line learning for their schoolchildren. This may present difficulties for several employees who do not have child care alternatives or who need to assist their children with home-learning. Employers should be particularly open to flexible work arrangements where feasible for such employees, especially since unfavorable treatment of such employees may attract family status discrimination claims under the Family Status Discrimination Ordinance.

On a related note, employers should also take note of foreign travel restrictions in place from time to time in the event employees are required to travel for business. Understandably, employees may also be reluctant to travel for business at this juncture (or even when travel restrictions begin to be relaxed). If this is the case, employers should again discuss these concerns with the relevant employees to see if alternative arrangements can be made, or a compromise can be reached.

Workforce Communication

Employers should ensure that a working group or department is on hand to draft necessary communications with employees during the transition back to a regular working schedule. Larger employer organisations may also consider establishing a hotline that can be used by employees to ask questions relevant to COVID-19 or the transition back to work.

On a more general level, employers (and managers) should remain in regular communication with employees/subordinates to ensure that they are kept up-to-date with relevant information regarding, work arrangement expectations, health and safety precautions taken by the company as well as information on pay sick leave or other types of leave. To the extent that employees have been able to successfully work from home, employers may receive questions about permanent remote work arrangements.

Litigation Mitigation

Over the past few months, employers have had to implement swift response measures to a constantly evolving situation. This has required a consideration of several different areas of law including, immigration, employment, data privacy, anti-discrimination and health and safety laws.

The response to this unprecedented health crisis has meant that employers have been forced to analyse not only their statutory obligations to their employees but also applicable contractual provisions and company policies. As we transition back to work, employers will need to consider how to handle any potential employee claims that may arise from measures already taken during this crisis. Although employees in Hong Kong may be returning to the workplace, the crisis is far from over on a global level and employers will still be faced with a myriad of questions revolving around compliance with applicable employment related laws. Employers should therefore continue to understand the statutory and contractual obligations owed by them to their employees under Hong Kong employment law.

For reference, the Labour Department has issued a publication summarizing these legal principles and how they apply in the context of COVID-19.

In addition to the above, employers with a union represented workforce should be mindful of their employees’ respective statutory rights as trade union members. Please see the Labour Department’s publication on trade unions for more information.

Finally, as alluded to above, “disability” is widely defined in the DDO and COVID-19 would amount to a disability under the DDO. Employers should be aware that, in addition to the discrimination law implications outlined above in this publication, protections under the DDO apply not only to persons currently suffering from a disability but also those with a past disability. Employers should therefore be particularly cautious when communicating with or implementing work policies affecting employees who had previously been diagnosed with COVID-19.

Epilogue

Ultimately, planning ahead and communication with employees is key to a smooth transition back to work. While employers may wish to consider developing a “playbook” as an initial step towards this transition, employers should, importantly, also strive to stay well informed. Hong Kong employers should keep abreast of the following information in particular:

• Local government orders and how they interact with the employer’s decision to transition back to work;
• COVID-19 specific government orders or regulations relating to employment issues; and
• Any other related guidance issued by relevant government authorities.

Stay safe, and stay tuned to our further publications and webinars on COVID-19.