What Hong Kong employers need to know about the Employment Amendment Bill 2022
21 March 2022
The government recently published the Employment (Amendment) Bill 2022 to amend the Employment Ordinance (“Amendment”). The Amendment will come into force on a date to be determined after it is enacted by the Legislative Council and it is expected that this will take place soon. The Amendment is a timely response to the outbreak of the fifth wave of COVID-19 in Hong Kong and this article summarises what employers need to know.
Scope of the Amendment
The Amendment covers three broad topics:
- Sick leave
- Valid reason for dismissal or variation of the terms of the employment contract
- Invalid reason for dismissal or variation of the terms of the employment contract
We provide a summary of each of these topics below.
The Amendment expands the definition of sickness day.
Once the Amendment takes effect, a day on which an employee is absent from work due to the employee’s compliance with a Cap 599 Requirement would be a sickness day in respect of which the employer would need to pay sickness allowance at the rate of four-fifths of the employee’s daily average wages if the employee meets the Conditions for it.
To the extent the employee is receiving sickness allowance, it would be unlawful to terminate the employee’s employment.
|What is a Cap 599 Requirement?
|What are the Conditions for sickness allowance?
|It is a restriction on movement where:
1. The employee is placed under quarantine or isolation, or is within a place that is placed under isolation (but does not include compulsory quarantine on arrival to Hong Kong from overseas);
2. The employee needs to comply with a compulsory testing notice (i.e. required to undergo compulsory testing);
3. The employee needs to comply with a compulsory testing order (i.e. ordered to undergo compulsory testing for having failed to comply with a compulsory testing notice); or
4. The employee is prohibited from leaving a restricted premises (that is, premises in relation to which a restriction-testing declaration is in force).
|1. The employee produces a document issued by the government, or electronic data accessible in a manner prescribed by the government, which states:
a. The name or information identifying the identity of the employee;
b. The type of restriction imposed on the employee under the Cap 599 Requirement; and
c. The commencement and expiry dates of the restriction imposed by the Cap 599 Requirement;
2. The sick leave period is 4 consecutive days or more and the employee has accrued sufficient number of sickness days to cover the sick leave period; and
3. The reason why the employee is subject to a Cap 599 Requirement is not due to the employee’s serious and wilful misconduct.
Valid reason for dismissal or variation of the terms of the employment contract
The Amendment provides that an employee who fails to comply with a Legitimate Vaccination Request made by the employer will be regarded as being incapable of performing work of the kind that the employee was employed to do, and that this would be a valid reason for dismissal or variation of the terms of the employment contract.
It is also worth noting that the Amendment in relation to valid reason for dismissal or variation of the terms of the employment contract will have a sunset clause. This means it will be repealed when the pandemic is no longer a matter of public health concern.
|What is a Legitimate Vaccination Request?
| The request must satisfy the following conditions:
1. Made in writing;
2. Issued to the employee and every fellow employee who performs the same or similar nature of work as the employee (i.e. an employer cannot pick on certain employees belonging to the same group);
3. Requests the employee to respond within 56 days (approximately 8 weeks);
4. Requires the employee to provide:
a. If the place of work are premises or is a public transport carrier in respect of which vaccine pass requirements apply: A record, document or information showing that the employee has been vaccinated in accordance with the vaccine pass requirements for that premises or public transport carrier. However, an employer cannot make a request under this ground if the employee is exempted from vaccine pass requirements (e.g. the employee holds a specified medical exemption certificate);
b. If the government otherwise requires or recommends that persons who perform a certain type of work should have received a certain number of doses of vaccination and the employee performs that type of work: A record, document or information showing that the employee has received the required number of doses of vaccination. However, an employer cannot make a request under this ground if the employee is exempted from vaccine pass requirements; or
c. If neither of the first two scenarios apply: A record, document or information showing that the employee has received at least one dose of vaccination. However, an employer cannot make a request under this ground if the employee is pregnant, breastfeeding, holds a specified medical exemption certificate or holds a proof of discharge or recovery issued by a person specified by the Director of Health certifying that the employee was diagnosed with COVID-19 on a date not earlier than 6 months from the date the request is made; and
5. The employer reasonably believes that having regard to the nature of the employee’s work and operational requirements, that if the employee is infected, those who may come into face-to-face contact with the employee at work would be at risk of infection.
It is worth noting that under the vaccine pass requirements, the required number of doses of vaccine progressively increases over time. To this end, the government has published a dosage schedule which can be found here.
Invalid reason for dismissal or variation of the terms of the employment contract
The Amendment clarifies that an employee’s absence from work due to the employee’s compliance with a Cap 599 Requirement would be an invalid reason for dismissal or variation of the terms of the employment contract (“Invalid Reason Amendment”).
It is worth noting that the Invalid Reason Amendment is an extension of section 32K of the Employment Ordinance. In relation to dismissal, section 32K protects employees who are employed under a continuous contract of 2 years or more against dismissal unless a valid reason is shown. Since the Invalid Reason Amendment is an extension of section 32K, this means that only employees who are employed under a continuous contract of 2 years or more would benefit from protection against dismissal under the Invalid Reason Amendment. To illustrate, please see below a comparison of the current and new position.
|Proposed new position
|Employees are not protected from dismissal if they are absent from work due a COVID-19 related restriction on movement regardless of length of service.
| For employees who have less than 2 years of service: Same as current position (i.e. still not protected).
For employees who have been employed under a continuous contract of 2 years or more: Such employees would be protected against dismissal under the Invalid Reason Amendment.
- Although under the Amendment, it would be a valid reason to dismiss an employee who fails to comply with a Legitimate Vaccination Request, employers are encouraged to be understanding and flexible in these difficult times, and a decision to dismiss an employee should only be taken after careful consideration.
- As noted above, compulsory quarantine on arrival to Hong Kong from overseas has not been included in the Cap 599 Requirement. This means that absence from work due to compliance with such compulsory quarantine would not amount to an invalid reason for dismissal or variation of the terms of the employment contract. However, an employee might still be protected from dismissal under other grounds so it remains that a decision to dismiss an employee should not be taken lightly.
- By virtue of the definition of a Legitimate Vaccine Request, an employer could effectively require non-exempted employees to get vaccinated (failing which the employer might have a valid reason to dismiss the employee). That said, vaccinations continue to be a very sensitive subject matter, so in the event of push back from employees to get vaccinated, it is advisable to first explain to the employees the rationale for receiving a vaccination and try to encourage them to get vaccinated before taking any action to dismiss an employee.
How we can help
We would be pleased to assist you in relation to managing absences from work due to restrictions on movement imposed on employees and non-compliance with vaccination requests. Please reach out to us if you wish to know more.