Guidance for Employers in Handling the Coronavirus Situation
General Duty to Provide a Safe Environment of Work
It has been over a month since the spread of the new coronavirus (“COVID-19”). Many employers have provided employees with “work-from-home” options, flexible working hours and implemented new health and safety policies.
In staying vigilant against the spread of COVID-19, it is prudent for employers to be aware of the extent of their legal duties in looking after the health and safety of their employees in the course of work.
What sort of measures should employers take to fulfil their duties in this pandemic?
What are the implications if employers fail to fulfil their duties in looking after the health and safety and their employees?
Is an employer liable if an employee is injured during the course of work in the “work-from-home”/flexible working hours arrangements now prevalent in Hong Kong?
What are the other implications that arise from the outbreak of COVID-19 that employers should be wary of now in respect of their employees?
Read on and find out! Employers may also wish to take measures to screen employees who are reasonably considered to be at risk of being exposed to COVID-19. Measures which employers may consider implementing to curb the spread of the virus includes asking employees to inform the appropriate personnel if:
circulating information on maintaining good personal hygiene to employees and displaying the same in common areas;
regularly cleaning and disinfecting common areas, especially surfaces which are frequently touched;
maintaining good ventilation; and
making soap, alcohol wipes, disinfectants, hand sanitizers or face masks available to employees.
Measures in Screening Employees
It is important for employers to be clear about any common and/or statutory implications that may arise from implementing contingency business measures. Employers should maintain flexibility and should act tactfully when deciding to implement contingency business measures. Businesses should also check carefully their insurance policies to ensure that circumstances such as travel restrictions or quarantine measures are covered and review their relevant insurance coverage carefully.
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Employers have a general duty to ensure the safety and health at work of all of its employees so far as it is reasonably practicable for them to do so and not to expose employees to unnecessary risks. They have a statutory duty to provide employees a safe place of work under the Occupational Safety and Health Ordinance. Employers who fail to do so may commit an offence and attract a fine of HK$200,000. If the employer is found to have committed such an offence intentionally, knowingly or recklessly, it may also bring 6 months’ imprisonment for its directors or responsible senior management personnel.
Broadly speaking, employers should implement the measures to (1) providing employees with information, instruction, training and supervision; (2) maintaining the workplace/ working environment in a condition that is safe and without risks to health; and (3) providing or maintaining systems of work that is safe and without risks to health.
In handling the COVID-19 outbreak, Employers may find the relevant framework of measures in the Guidelines posted by the Centre of Health Protection of the Hong Kong Government as a starting point. As a few practical suggestions, handling the COVID-19 situation may entail: Different industries and different employees may involve different risks and warrant customized protection measures or guidelines. Employers may need to consider appropriate and reasonable measures and guidelines beyond the general recommendation to ensure the safety and health at work of all of its employees.
In such cases, employers may consider asking such employees to work from home for a reasonable duration (i.e. 14 days according to the Government’s guidelines).
Employers should note that employees working from home are entitled to receive normal wage and benefits in the usual way. If an employee is injured while working from home, they remain entitled to compensation under the Employees’ Compensation Ordinance if the injury is the result of an accident arising out of and in the course of employment, though this is a question of fact to be assessed on a case by case basis.
If employers ask employees to undergo temperature checks before entering the building or office or medical examinations, the medical information of the employees pertains to personal data and employers should therefore ensure that employees are aware of the purpose of these health checks and that the data is collected in a manner in line with the Personal Data (Privacy) Ordinance.
An employer should take care that an employee who contracts or who is believed to be at risk of contracting COVID-19 should not be treated unfavorably by reason of the same. It may otherwise be at risk of contravening the equal opportunities framework under the Disability Discrimination Ordinance or Race Discrimination Ordinance respectively, or a breach of an employer’s implied duty of trust and confidence to the employee.
Employers should also take care to ensure that an employee is not subject to harassment or less favorable treatment by supervisors and/or colleagues as a result of an infection or a suspected infection. If the employer is considering making amendments to its employment structure, such as terminating employment contracts, inter alia, the employer should ensure that the decision was not influenced by the employees’ exposure or infection to COVID-19. What if an Employee Contracts COVID-19?
Contingency Business Measures
As part of the employer’s duty to ensure safety and health at work to other employees, as mentioned above, the employer should take reasonable practicable measures. For example, the employer should arrange for disinfection of the infected employee’s workstation and common areas and ask employees who have been in close contact with the infected employee to refrain from returning to the office for a reasonable duration. There should also be measures in place for rehabilitation of sick or quarantined employees back to the workplace.
Towards the infected employee, the employer is required to grant sick leave and pay sickness allowance in accordance with the Employment Ordinance. If an employer provides private medical insurance to the employee, the employer may need to confirm with the provider whether COVID-19 is included in the insurance coverage.
An employee who contracts COVID-19 as a result of an accident arising out of and in the course of his/her employment may make a claim under the Employees’ Compensation Ordinance, upon which the normal procedures would apply. Employers may need to confirm with their employees’ compensation insurance providers whether COVID-19-related claims are covered. they have been in contact with any person who has had contact with patients who are confirmed or suspected cases of COVID-19;
if they have visited countries of high numbers of confirmed cases; or
if they have a fever or have been experiencing notable symptoms of COVID-19.
Given the disruption COVID-19 has caused in many industries and businesses, employers may be considering implementing contingency business measures as regards to its employees.
As seen in the news recently, many employers have activated arrangements for no pay leave. Employers should note that although any arrangements of no pay leave is not prohibited by Hong Kong legislation, employers are still bound by any employment contractual obligations entered between the parties and any arrangements regarding no pay leave should be mutually agreed between employers and employees before it can be implemented.
Employers should also be aware that proper consultation is conducted with employees and any agreements are carefully documented to avoid dispute as it is not uncommon that labour dispute arises with additional labour arrangements. Agreements should also be drafted carefully to include details of the arrangements and should include provision to exempt employers from future liabilities. James Yeung, Partner
John Li, Associate
Tammy Ha, Trainee Solicitor All information contained in this article are for the purposes of general information only. This article is not to be treated as legal advice or opinion. YTL LLP accepts no responsibility for any loss or damage arising directly or indirectly from any action taken (or not taken) which may arise from reliance on information contained in this article. Please seek legal advice concerning your own circumstances and any legal queries that you may have.