Written by Kathryn Weaver, Katy Lee; Lewis Silkin (Hong Kong)

Hong Kong has relaxed its Covid travel rules, removing the need for inbound travellers to self-isolate in a quarantine hotel. What will change for employers?

During a press conference on Friday, 23 September 2022, Hong Kong’s Chief Executive John Lee announced the Government’s long-awaited new rules for inbound travellers traveling to Hong Kong from overseas places. Under the new rules, which commenced on 26 September 2022, inbound travellers will no longer be required to isolate in a designated quarantine hotel upon arrival. Instead, travellers may leave the airport by self-arranged transport after undergoing a nucleic acid test and will be subject to a ‘0+3’ arrangement where they will not be required to quarantine but will be required to undergo three days of ‘medical surveillance’, either at home or at a hotel of their own choosing.

During this period of medical surveillance, individuals will be free to go out, but they will be under ‘Amber Code’ restrictions on their Vaccine Pass on the LeaveHomeSafe app. The three-day medical surveillance period will be followed by a four-day self-monitoring period. During the total seven-day observation period, individuals will be required to conduct daily rapid antigen tests and to undergo nucleic acid tests at a community testing centre or a mobile specimen collection station on day 2, 4 and 6 after arrival (the day of arrival being day 0). Provided that the day 2 nucleic acid test yields a negative test result, individuals will be issued a ‘Blue Code’ and will no longer be subject to ‘Amber Code’ restrictions.

Individuals boarding planes for Hong Kong will also no longer have to present proof of a negative nucleic acid test result before departure or proof of fully vaccinated status (for Hong Kong residents only; non-Hong Kong residents will still be required to provide proof of fully vaccinated status or have a medical exemption certificate). Instead, a declaration of a negative test result from a rapid antigen test taken within 24 hours before departure will be sufficient.

With this relaxation of measures now in place, we consider some of the implications for businesses and how employers should prepare themselves for this.

Working during medical surveillance

Can employees enter the workplace during the medical surveillance period?

Yes. Individuals will be able to conduct daily essential activities, such as go to work, during the medical surveillance period. They will not, however, be allowed to enter high-risk premises involving mask-off or group activities, as well as other premises such as bars, cafes and restaurants, fitness centres, beauty parlours and religious premises. The inability to enter bars, cafes and restaurants may affect how employees interact with colleagues and clients, but it will not prevent them from entering the workplace and carrying out work. If a person holding an Amber Code works at one of these restricted premises, (e.g. they are a fitness instructor in a fitness centre), they will not be subject to the entry restrictions under the Vaccine Pass and will be able to enter their workplace freely.

While it is legally possible for employees to enter the workplace during the three-day medical surveillance period, employers will need to consider what their policy is on this and whether they wish to request that employees stay away from the workplace during this period for health and safety reasons or allow them to enter but with enhanced social distancing measures.

Business travel

Can employees resume business travel immediately?

As a result of the relaxation of the rules, business travel, which might have been put on hold due to Hong Kong’s strict entry requirements, will be able to resume. As employees may not have travelled for several years during the pandemic, employers may wish to remind employees to check their passports and visas to ensure they remain valid so that they can travel as planned but also to ensure they are complying with their employment contracts which might make it a condition of continued employment to hold a valid passport and visa(s).

Employers should also check that all travel insurances for employees are up-to-date and that they are complying with their health and safety obligations in respect of their employees travelling for business.

Secondments

Can secondments to the Hong Kong office also resume immediately?

Secondments to Hong Kong will be more viable and attractive with the new relaxed entry rules. However, before employees can depart for Hong Kong, employers will need to check the employee has the right to work there and, if not, will need to assist them with applying for an employment visa, which can take around six weeks.

Employers should also put in place a secondment agreement with the employee setting out the duration of the secondment, any changes to role, pay and benefits, the governing law of the agreement, etc, and also a service level agreement with the Hong Kong entity to which the employee is being seconded. Other considerations include: understanding the tax position for all three parties; ensuring all regulatory matters have been complied with (where the employer operates in a regulated industry); and considering any data transfer needs and obligations.

Annual leave

Employers may experience a sudden flurry of annual leave requests – do they have to accept the requests?

As these changes open the door to more frequent personal travel, employers should expect requests for annual leave to increase significantly and will need to consider what rights they have under the Employment Ordinance and employment contracts to control when employees can take leave.

Annual leave falls into two categories: statutory annual leave, which is the minimum number of annual leave days required to be granted under the Employment Ordinance; and contractual annual leave, which is annual leave granted by an employer in addition to the statutory annual leave amount, as agreed in the employment contract. In respect of statutory annual leave, the timing of the leave can be appointed by the employer (after consultation with the employee) and confirmed by a written notice to the employee at least 14 days in advance (unless a shorter period has been mutually agreed). As to contractual annual leave, the right to appoint the timing of the leave would depend on the specific terms of the annual leave clause in the employment contract.

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