Employer's Obligation in handling Novel Coronavirus

The number of reported cases of the Novel Coronavirus continues to rise in Hong Kong. As the situation develops the issues and questions for an employer to handle when dealing with employees are wide and varied. This article looks at some of those issues in a question and answer format. Hong Kong is no stranger to handling virus outbreaks. Experience says taking preventative measures, remaining vigilant and preparation are key.

  1. WHAT ARE AN EMPLOYER’S MAIN LEGAL OBLIGATIONS?

    The main areas of an employer's legal liability associated with the Novel Coronavirus in the workplace include:

  • Ensuring so far as reasonably practicable the health and safety of all employees at the workplace (i.e. obligation under Occupational Safety and Health Ordinance ("OSHO") and common law duty of care);
  • Complying with obligations under the contract of employment and the Employment Ordinance ("EO") (e.g. continuing to pay wages, ensuring the employee works within the terms of the contract of employment);
  • Complying with the Disability Discrimination Ordinance ("DDO"); and
  • Complying with the Employees' Compensation Ordinance ("ECO") (e.g. having appropriate insurance and timely reporting of illnesses/death). An employer is legally required to take out the appropriate insurance under the ECO, an employer may also wish to consider business interruption insurance, medical insurance and evacuation cover.
  • Observing the requirements under Personal Data (Privacy) Ordinance ("PDPO") in relation to any collection, retention, use and disposal of personal data of and employee.

An employer may also wish to review their existing insurance policies including medical insurance, evacuation cover and business interruption. 

  1. DO I NEED TO PREPARE FOR AND HAVE IN PLACE A WORKPLACE PLAN TO DEAL WITH THE NOVEL CORONAVIRUS?

There is no legal obligation in Hong Kong on an employer to specifically have a workplace Novel Coronavirus response plan. However, the OSHO requires all employers in Hong Kong to, so far as reasonably practicable, ensure the safety and health at work of all the employer's employees. One reasonably practicable step an employer could take is to develop a plan dealing with workplace health and safety issues associated with the Novel Coronavirus.

As such, employers should prepare a detailed plan (if one is not already in place) and implement it. The more detailed the plan the better prepared an employer will be to cope with any Novel Coronavirus outbreak. A plan should deal with preparations to prevent an outbreak, what happens during the outbreak, and the steps to be taken after the outbreak. Both workplace health and safety issues and business continuity issues should be covered.

The plan may be part of and/or refinement of a broader plan already developed.  

  1. WHAT SHOULD A WORKPLACE NOVEL CORONAVIRUS RESPONSE PLAN COVER?

The plan should deal with the following:

Before an outbreak

  • Preventive measures. The Centre for Health Protection issued Health Advice on Prevention of Severe Respiratory Disease associated with a Novel Infectious Agent in Workplace which sets out the guidelines on preventive measures that may be taken.
  • Disinfecting the workplace regularly.
  • Maintaining good environmental hygiene and good indoor ventilation.
  • Making sure that employees, suppliers and customers are aware of the employer's plans in the event of an outbreak.
  • Ensuring sufficient supplies of appropriate masks, alcohol wipes, hand sanitizers, gloves, paper towels, thermometers, disinfectants, etc.
  • If employees are required to travel to areas known to have the virus, whether such travel is necessary. 

During an outbreak

  • The steps that the employer will take to ensure the safety of employees while at work during a Novel Coronavirus outbreak including how an employer will identify risks of employees becoming infected and how to minimise such risks.  Employer may also wish to seek advice from Centre for Health Protection as to what steps need to be taken, e.g. quarantine requirements. 
  • Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
  • Where employees will work, e.g., home, in the office or in alternative temporary offices.
  • At what stage will the workplace be closed and who will make the decision.
  • How to deal with infection and/or deaths of colleagues, e.g., counselling.
  • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by the Novel Coronavirus.
  • What to do with high risk/exposure staff (e.g., pregnant, key employees and employees who travel).

After an outbreak

  • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
  • Rehabilitation for sick employees returning to the workplace.

Depending on the circumstances, employers may wish to:

  • Discuss with staff about the possibility of a workplace closure prior to closing;
  • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted;
  • Allow employees to work from home; and
  • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace prior to any intended visit where reasonably practicable.

  1. CAN I DIRECT MY EMPLOYEES TO GO HOME OR STAY AT HOME IF THERE IS AN OUTBREAK?

Yes, but it depends. If the employee is infected or suspected of having infected with the Novel Coronavirus and keeping the employee away from the workplace is reasonably necessary to protect public health, then the employer may direct the employee not to attend at the workplace (if the employee is not already subject to mandatory quarantine). The employer should continue to comply with its obligations under the EO and the contract of employment (e.g. to pay wages).

  1. CAN I DIRECT AN EMPLOYEE TO SEE A DOCTOR?

Yes, but it depends. Requesting an employee to see a doctor is invasive and an employer would therefore generally require an express power in the contract of employment in order to direct an employee to see a doctor. Depending upon the circumstances, an employer may require an employee to obtain a clearance from a doctor before being allowed to enter into the workplace.

  1. DO I HAVE TO CONTINUE TO PAY WAGES AND PROVIDE OTHER EMPLOYMENT RELATED ENTITLEMENTS DURING A NOVEL CORONAVIRUS OUTBREAK?

Yes. The contract of employment will continue during a Novel Coronavirus outbreak unless the employment has ceased. An employer cannot refuse to pay wages simply because the employee is unable to attend the workplace or perform any work because of an outbreak.

  1. CAN I QUARANTINE CERTAIN STAFF TO CERTAIN PARTS OF AN OFFICE OR SEND THEM TO A DIFFERENT OFFICE?

It depends but is possible. An employer must be careful not to contravene the DDO. An employee with the Novel Coronavirus or suspected of having the Novel Coronavirus will be a person with “disability” for the purposes of the DDO. Depending on the circumstances (including if an exception applies under the DDO – see Q11 below), an employer may ask an employee to work from a particular part of an office if it is to ensure his/her and/or other's health and safety. As to whether an employer can send an employee to work in a different office, that would also depend on the circumstances including the contract of employment (e.g. whether it provides that the employee is entitled to work at a particular location), the extent of the travel required and inconvenience suffered by changing the work location. For example, it may not be permissible to change an employee’s workplace from Hong Kong to a place overseas when the employee does not usually travel as part of his duties.

  1. CAN I DIRECT MY EMPLOYEES TO REPORT SUSPECTED CASES OF THE NOVEL CORONAVIRUS?

Yes, in the event of a Novel Coronavirus outbreak, in our view, it would be lawful and reasonable to ask an employee to report if they suspect that they may have the Novel Coronavirus.

  1. CAN AN EMPLOYEE LAWFULLY REFUSE TO ATTEND WORK IF THERE IS A NOVEL CORONAVIRUS OUTBREAK?

It depends but is possible. An employee can only lawfully refuse to attend work if he reasonably fears for his health and safety by doing so. Section 10 of the EO entitles an employee to terminate his contract of employment without notice or payment in lieu if he reasonably fears physical danger by violence or disease which was not contemplated by his contract of employment expressly or by necessary implication. If an employer requires an employee to attend work in these circumstances, it is likely to be in breach of the OSHO. An employee may apply to take annual leave.  If the employee has exhausted the annual leave entitlement, he/she can explore with the employer the possibility of taking unpaid leave.

  1. CAN I SCREEN EMPLOYEES AND CUSTOMERS BEFORE ALLOWING THEM TO ENTER THE WORKPLACE?

Maybe. Depending upon the extent of the outbreak, the screening of employees and customers may be a reasonable step for an employer to take to reduce the risk of its employees being exposed to harm. However, depending upon technological and medical testing limitations, there may be logistical and privacy issues under the PDPO which an employer must consider prior to implementing any screening measures. From a logistical perspective, there may also be difficulty in undertaking any medical testing in a timely and effective manner before gaining entry to the building.

  1. CAN I STOP A CUSTOMER FROM ENTERING THE WORKPLACE IF I SUSPECT HIM OF HAVING THE NOVEL CORONAVIRUS?

Maybe. The DDO prohibits discrimination against a person with a disability in the provision of goods, services or facilities, as well as in the employment field. There is an exception if the disability is an infectious disease (which includes the Novel Coronavirus) and the discriminatory act is reasonably necessary to protect public health. So, if a customer is infected with the Novel Coronavirus and there is the risk of the customer exposing the employees to harm the employer may refuse entry to that person.

  1. IS AN EMPLOYEE WHO HAS CONTRACTED THE NOVEL CORONAVIRUS ENTITLED TO COMPENSATION UNDER THE ECO?

Maybe. Unlike SARS and Avian influenza A, the Novel Coronavirus is not currently classified as an occupational disease under the ECO for payment of compensation. However, section 36 of the ECO provides that an employee shall have the right to recover compensation under the ECO in respect of a disease which is not a prescribed occupational disease if contraction of the disease amounts to a personal injury by accident arising out of and in the course of employment.

In determining whether the contraction of Novel Coronavirus amounts to a personal injury “by accident”, the Labour Department will have to assess whether there was “an accident” which must be distinct from the injury/disease, with the accident being at least a contributory cause and the injury/disease being the effect. Circumstantial evidence including the medical records and relevant information of the case would be relevant in determining whether “an accident” has occurred.

  1. WHAT DO I DO IF MY EMPLOYEE IS QUARANTINED OR PUT UNDER MEDICAL SURVEILLANCE?

Under the Prevention and Control of Disease Regulation, if a health officer has reason to believe that a person has been, or is likely to have been, exposed to the risk of contracting an infectious disease (of which the Novel Coronavirus is one), then the health officer may place that person under quarantine or medical surveillance.

If an employee is required or ordered by a health officer to be put under medical surveillance or quarantine, he/she will be issued a medical certificate with the statement of "under medical surveillance". The employer will need to grant the employee sick leave and pay sickness allowance in accordance with the EO and/or the relevant contract of employment.

CONCLUSION

Health and safety issues relating to the Novel Coronavirus will likely be at the forefront of employers' minds over the coming weeks or months. Communication with employees and being flexible on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak.

Partner, Mayer Brown

Partner, Mayer Brown

Partner, Mayer Brown