Proposed Changes to Employment Law Relating to Covid-19

In late February, 2022, the Hong Kong Government introduced the Employment (Amendment) Bill 2022 (“Covid Employment Bill”). Under the proposed legislation, a day of absence from work due to Government restrictions on movements will be treated as a sickness day so that employees will be protected from dismissal for such absence and may be eligible for sickness allowance. Conversely, under the proposed legislation, a dismissal of an employee who fails to comply with an employer’s legitimate vaccination request within a prescribed period without sufficient medical reasons will not be regarded as an unreasonable dismissal. If you would like more information about how these proposed arrangements may affect you or if you have questions about Hong Kong employment law matters, please contact one of our employment lawyers.

Introduced in late February, 2022, the Covid Employment Bill aims to extend statutory safeguards to employees absent from work during the COVID-19 pandemic and to enable employers to mandate that employees be vaccinated against COVID-19. The Covid Employment Bill has not yet been passed into law but is expected to be implemented as soon as possible.

Government Restrictions on Movements

Like all members of the public, employees must comply with restrictions on movement imposed under the Prevention and Control of Disease Ordinance, including quarantine and isolation orders. The Covid Employment Bill will make it explicit that:

• a day on which an employee is absent from work by reason of compliance with such restrictions will be deemed as a sickness day under the Employment Ordinance;
• the employee will be entitled to sickness allowance for their absence from work, subject to the fulfilment of the relevant criteria, including the requirement to provide documentary proof of the restriction imposed on the employee and the requirement that the period of absence be 4 or more consecutive days; and
• dismissal of the employee by reason of compliance with such restrictions will be considered as an unreasonable dismissal.

Such employment protection does not apply where absence from work is due to restrictions imposed on people travelling to Hong Kong.

Vaccination

To support the “vaccine pass” implemented under the Prevention and Control of Disease (Vaccine Pass) Regulation (“Vaccine Pass Regulation”), the Covid Employment Bill provides that the failure of an employee to comply with a legitimate vaccination request made by his employer is a valid reason for termination of employment.

The vaccination request must meet the following key requirements in order to be considered legitimate:

• Compliance with Government Vaccine Requirements – The request is for the employee to produce documentary proof within 56 days that the employee either (i) has been administered with at least one dose of COVID-19 vaccine recognized by the Government, or (ii) depending on the nature and place of work of the employee, has been administered with COVID-19 vaccine in such other dose and/or in the specified manner as directed under the Vaccine Pass Regulation or by other means specified by the Government;
• No Medical Exemptions or Prior COVID-19 Infection – The employee must not (i) be pregnant or breast feeding, (ii) have a medical exemption certificate specified in the Vaccine Pass Regulation; or (iii) be in the first 6-month period after being diagnosed COVID-19.
• Risk of Infecting Others – The employer reasonably believes, having regard to the nature of the employee’s work and the related operational requirements, that if the employee contracts COVID-19, 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; and
• Standardized Request – The vaccination request is made to every fellow employee that performs work of the same or similar nature.

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