As Hong Kong finds itself gripped by another viral outbreak reminiscent of SARS which hit Hong Kong in 2003, many employers are asking questions around how to protect their workplaces and staff in the midst of uncertainty about the potential impact of the contagion.
With the Lunar New Year over, the Hong Kong Government took the decision to require civil servants to stay home until the end of the first work week in the Year of the Rat. Many other private sector employers followed suit with employees being asked, or given the option, to work from home.
At the same time, organisations are taking steps to prepare themselves for business disruption. Employers will need to ensure that they are fully aware of their legal obligations and to adopt a flexible approach to situations as and when they arise.
This article sets out some of the questions employers may have and offers some guidance on their rights and obligations to help navigate these challenging circumstances.
Are there any best practice guidelines for maintaining a safe workplace when faced with a viral outbreak?
The Occupational Safety and Health Branch of the Labour Department in Hong Kong has previously issued Guidelines for Employers and Employees on the Prevention of Avian Influenza and on the Prevention of Human Swine Influenza. The Guidelines contain practical measures to enhance personal and workplace hygiene and safety, such as maintaining good ventilation, disinfecting commonly-used equipment, providing hand soap in toilets, providing face masks when necessary, communicating relevant guidelines to employees, and reminding employees with fever not to attend work. In addition, the Department of Health has issued Guidelines on Prevention of Severe Respiratory Disease associated with a Novel Infectious Agent for the General Public. Although these guidelines do not have the force of law, employers are encouraged to follow them to the extent possible. The Labour Department has, in fact, recently appealed to employers to help reduce the spread of the disease; for example, by providing surgical masks and other protective equipment as needed to frontline staff. Following these guidelines may help to demonstrate that employers have discharged their duty of care under statute and under common law.
Can an employer close its workplace and ask its staff to remain at home?
Under the Occupational Safety and Health Ordinance, an employer has an obligation, so far as is reasonably practicable, to ensure the health and safety of its employees. If the employer considers it necessary to close the workplace to ensure the health and safety of its employees (and is able to do so without major disruption to its business), then we consider that this is legally permissible in the present climate.
However, employers should consider their obligations to – and the impact on – all categories of workers, including those who are hourly or piece-rated workers and who may therefore suffer a loss of income due to the closure of the workplace.
Is an employer obliged to continue paying wages if the workplace is closed due to the outbreak of disease?
Generally speaking, employers are obliged to continue complying with their contractual obligations (e.g. paying employees' wages), even when the workplace is closed.
In the unfortunate event that an organisation is required to remain closed (for example, if one of the staff members who has been in the office has contracted the virus), then, where it is not possible for employees to work from home, the employer may seek to agree with employees that they take a period of annual leave or unpaid leave during the mandated office closure.
We kept our office closed immediately after the Lunar New Year holiday, in line with some other businesses, following the Government’s closure of some of its departments. Are we obliged to remain closed or can we ask our employees to return to work?
From an employment law perspective, there is no obligation to remain closed merely because of the Government decision to close some of its departments. Of course, all organisations should take whatever measures are reasonable to mitigate the spread of disease. The Labour Department has, for example, appealed to employers to provide surgical masks and other protective equipment as needed for frontline staff. Where there are genuine concerns by employees about returning to the office (for example, individuals with diagnosed immune deficiencies), then employers are encouraged to be flexible in their work arrangements for such individuals.
Can an employer ask an employee to remain home if he/she has been sick but his/her sick leave certificate has expired?
If the employee has been declared fit to return to work by his/her doctor, i.e. the employer has sufficiently recovered to perform his/her duties, then the employee is entitled to return to work. However, if the employer wishes the employee to remain home until all visible signs of the sickness have disappeared, then it is recommended that the employer reach an agreement with the employee that enables him/her to remain at home with normal pay. If the employee’s duties do not permit him/her to work remotely and he/she would be deprived of income by remaining absent from the workplace, then the employer should still continue to pay average wages, e.g. as compensatory leave, otherwise the employer could be in breach of its implied duty to the employee to provide work or be in breach of its duty of trust and confidence to the employee, since the employee is certified fit to return to work. The employer should not require the employee to take this extended leave as statutory sick leave because a statutory sickness day is a day on which an employee is absent from work by reason of him/her being unfit to work due to sickness or injury.
Can an employee refuse to attend the workplace because of concerns about contracting the virus?
An employee is required to comply with his/her employer’s reasonable instructions. Unless there is a valid basis for refusing to attend the workplace, a refusal to comply with the instruction can amount to a breach of contract. Under the Occupational Safety and Health Ordinance, an employer has an obligation, so far as is reasonably practicable, to ensure the health and safety of its employees. Provided an employer has taken reasonable measures to provide for the health and safety of its employees (e.g. by complying with Government guidelines), 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. Having said this, employers are also encouraged to exercise compassion and tolerance in the circumstances, such that, if it is possible for employees to work from home, a more flexible approach may provide for better employee engagement.
Is an employer entitled to require an employee to see a doctor?
In the current environment, if the employer has grounds for making this request (e.g. the employee has symptoms such as fever), then this would appear to be a legitimate requirement, given that the employer also has an obligation to take reasonable measures to ensure the health and safety of its employees. In addition, if an individual's employment contract permits such a request to be made, then this gives the employer express contractual grounds for doing so.
If an employee's relative has been diagnosed with or suspected to have contracted the virus, can an employer require the employee not to come to work?
This will depend on the basis for the request. If the reason for asking the employee not to come to work is because he/she has been in recent close or physical contact with the sick relative, then this is likely to be a reasonable request and it is probable that the employee would be quarantined in any event.
However, if the only reason for the request is because of the relationship between the employee and the sick relative and the employer does not have evidence of any contact between the employee and the relative, then this is unlikely to be reasonable. In addition, this would constitute disability discrimination on the basis of the employee's association to a person with a disability, and would be a potential breach of the employer's implied duty of trust and confidence to the employee.
As the situation develops in Hong Kong, employers and employees alike are encouraged to work together to create pragmatic solutions to minimise the impact to business operations, employee income and customer service. In challenging times such as this, striking the right balance between rights, obligations, pragmatism and compassion will be important to the health of Hong Kong on many levels.