As COVID-19 continues to cause disruption around the world, at the time of writing Hong Kong is in a relatively better position compared to others. While the possibility of a resurgence in cases cannot be underestimated, Hong Kong has at least been able to resume some semblance of business normality and is now dealing with the ‘problem’ of enabling staff to return to work.
The Hong Kong government has so far not introduced any statutory requirements or guidelines on returning to work. However, there are a number of issues employers should be mindful of.
What are my health and safety obligations?
COVID-19 has forced employers to carefully consider their health and safety obligations. Employers generally have a duty to safeguard the safety and health of their employees, so far as is reasonably practicable. Some countries have extensive legislative frameworks in place, while others impose obligations at common law. Many (including Hong Kong) have specific requirements regarding the prevention of infectious diseases and the steps employers are required to take.
Prior to staff returning, employers would have introduced heightened health and safety measures to ensure compliance with their obligations. Although many staff have returned to work, it is important that employers continue existing protocols for an interim period.
This will vary by employer and by location, but generally speaking employers should consider maintaining existing health and safety processes for an interim period, such as taking temperature checks, requiring visitors to declare travel and medical histories, providing face masks and hand sanitisers, and requiring employees to notify the employer if the employee has tested positive or is displaying symptoms. Employers should also consider whether any further measures are appropriate, such as social distancing of desks, requiring phased return to work or split shift working. Employees should be reminded to stay vigilant and continue to take the measures seriously.
Can employees refuse to come back to work?
Many employees are understandably still nervous about the prospect of returning to the office and being exposed to other colleagues and members of the public. This is particularly the case for organisations with large headcounts or where the employee has to commute for a long distance by public transport in order to get to and from work.
Employees can refuse to come to work if they reasonably believe there is a risk to their health and safety. What will be considered "reasonable" should be assessed on a case-by-case basis, and it would be prudent to have discussions with employees to understand their concerns and see if these can be reasonably addressed.
If an employee refuses to attend a business meeting with someone from out of town or overseas, this should also be assessed on a case-by-case basis. If the person from out of town or overseas has completed their quarantine period according to local rules or there is no reasonable suspicion that the person has tested positive, is a suspected patient or a close contact thereof, then the employee generally cannot refuse to attend the business meeting. If the employee’s concern appears to be reasonable, then the employer should try to make alternative arrangements where possible, for example by arranging a dial-in.
Can employers introduce mandatory medical testing?
Full medical testing/screening should be carried out only with an employee’s express, voluntary consent. It may be possible to implement less intrusive medical screening measures without individual consent and provided the employer complies with applicable data privacy laws, such as temperature checks and travel declaration forms.
Without express, voluntary consent, it is likely to be viewed as excessive and unreasonable to require employees to undergo testing as a pre-condition to returning to work, and an employer would face potential claims if it refuses to allow employees who are otherwise ready and willing to return to work to do so.
Employers can however require employees to notify the employer in the event that they test positive for COVID-19 or display symptoms of COVID-19. This is a reasonable request and employees should be required to do so.
There is no express obligation to notify government authorities that an employee has tested positive. However, employers should be prepared to cooperate with the Department of Health in the case of an investigation and required contact tracing (both social and close contacts).
Employers should also be mindful that if an employee contracts or suspects having contracted COVID-19 by accident arising out of and in the course of their employment, then the employer is required to notify the Labour Department of the “injury,” as this would potentially allow the employee to bring a claim under the statutory employees’ compensation regime in Hong Kong. If there is any doubt as to whether the employee contracted the virus during work or outside work, the prudent course of action would be to notify the Labour Department.
Can we introduce flexible work options?
There is no doubt that COVID-19 is changing the way employers view they way they do business and how they can best use their resources in times of crisis.
During the initial return to work phase, many employers were implementing some form of staggered/phased working operations. The use of split shifts or split teams to cover different parts of the business and different time zones has been a popular method. There is no requirement to do so, but if this has been working well without business interruption, then it would be sensible to continue these arrangements for an interim period.
If employers want to impose part-time or shorter working hours, this requires the employee’s express, voluntary consent.
Finally, employers should be mindful that social distancing requirements may still be in place or may be reintroduced and should always be observed.
Can employees be required to use their paid annual leave entitlement?
Given the travel restrictions currently in place, many employers are concerned that staff will not want to utilize their paid annual leave entitlement and will be left with significant accrued annual leave balances heading into the next leave year.
In Hong Kong, employers are generally free to determine the dates on which employees must use their statutory paid accrued annual leave provided they have consulted with them in advance and given them not less than 14 days' written notice. There is no definition of what amounts to sufficient "consultation" – provided the employer has entered into some form of dialogue with the employee and allowed them some time to consider their views, this should be sufficient. For any contractual accrued annual leave (i.e. anything over and above the statutory minimum), the treatment would depend on the terms of the employment contract and the employer’s annual leave policy.