The Prognosis  

With the holiday festivities officially behind us and people returning to work, it is not uncommon to hear a sniffle here and there. Aside from post-holiday blues, many may be suffering from the common flu. January is the beginning of the flu season in Hong Kong, which runs to March and from July to August.  

Aside from the obvious social impact, the economic implications of the common flu are phenomenal. The US Department of Health and Human Services estimates that seasonal flu is responsible for 111 million lost workdays each year in that country.  

There can be legal requirements too – in some cases, regulators may need to be notified if regulated employees become incapacitated due to illness.  

In the event of a flu outbreak (or of any communicable disease), it can be difficult for employers to maintain a safe and functional working environment.  

Now is a great time to start thinking about putting in measures to ensure the wellbeing of employees and to make sure business continuity is not affected by a surge in flu-related absence.

The Prevention  

Under the Occupational Safety and Health Ordinance, employers in Hong Kong have a duty to ensure “so far as reasonably practicable” the health and safety of their employees. One step an employer should take is to reduce and mitigate the risks of a communicable disease outbreak in the workplace.  

This can mean a number of things. On the one hand, companies must ensure a safe working environment – meaning proper ventilation, cleaning and disinfection of the workplace. However, companies that go beyond the minimum legal obligation are the ones that do a better job of minimising disruption through sickness-related absence. They tend to take steps such as educating employees on contagion, providing free or subsidised flu vaccinations, and limiting business travel to areas that pose a high risk of illness.  

It is also important to remind employees to stay home if they are feeling ill, and to allow them the flexibility of working from home if possible. Employers should make sure they have a robust sick leave policy that is compliant with the Employment Ordinance and clearly sets out the steps employees should follow when they are absent due to illness.  

The Response Plan

Employers should also implement a workplace response plan to deal with any health, safety and business-continuity issues in case of a flu or other outbreak.  

 The Department of Health’s “Preparedness Plan for Influenza Pandemic”, which sets out the government’s response plan in the event of a flu pandemic, is a useful guideline.  

There is no one-size-fits-all approach to this – businesses in different sectors will have to face different types of risk and varied legal obligations, for instance, food safety laws in restaurants. It is therefore important to anticipate how a communicable disease outbreak may affect your workplace.

A first step could be evaluating and identifying essential business activities, and establishing backup plans in terms of supplier and distribution channels and key personal and substitute workers. In anticipation of any office closure (and as good practice, anyway) employers should request employees keep their personal contact information up to date.  

Who are the core people who keep your business running and are there potential candidates who can step in if they fall ill? In businesses that require heavy manpower, how would you address mass absences due to illness? Are there substitute workers you can call in these circumstances? And in respect of client or customer-facing activities, what is the backup plan in respect of external communications to provide swift reassurance if you do face sudden significant sickness absence?  

Another issue that is often overlooked by employers when preparing a response plan is the internal communication channel with employees. For example, in the event of an office closure, how will you contact your employees? Do you have their most up-to-date contact details, such as mobile numbers and personal email addresses?  

Another point for employers to consider is who has particular responsibilities with regard to the response plan. Who for example will be responsible for communicating with employees or keeping record of any illnesses? Who will be keeping up with the developments or guidance issued by the Department of Health, and updating the response plan if required? All of these are important issues to consider and address in a response plan.

When a flu outbreak is over, how do you ensure employees are fully recovered before they return to work? Is there a power under the employees’ contract to direct them to see a doctor? Requiring an employee to do this is an intrusive measure, so this would generally require an express power provided in the terms of employment.  

After putting in place a response plan, do not forget to ensure employees are aware of the plan and their responsibilities. This could be done by posting details of the plan on the intranet or through internal training. Regular reminders through posters or emails will also help keep these issues at the forefront of employees’ minds.  

A well-thought-out response plan will not only mitigate the risks associated with a communicable disease outbreak, but will also help alleviate the anxiety and uncertainties of employees.

Kathleen Healy is a partner in Freshfield’s expanding employment, pensions and benefits practice in Asia and specialises in advising on Asia-Pacific employment and HR projects.
Laura Chapman is a senior associate in Freshfield’s employment, pensions and benefits team based in Hong Kong. She has a broad range of experience advising employers on both contentious and non-contentious employee matters throughout the Asia-Pacific region