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By Kathryn Weaver, partner, Lewis Silkin

How has the duty of care for the mental and physical wellbeing of employees during the pandemic changed things from a legal standpoint for employers?

The law on mental and physical wellbeing of employees hasn’t changed in Hong Kong as a result of the pandemic, but the emphasis on it certainly has. Never have employers in Hong Kong had to think more about the well-being of their employees than they have in the last year or so – what with the protests that marked 2019 and the beginning of 2020, three waves of high coronavirus infections and the introduction of the National Security Law. All of these events have had an impact – physical, mental or both – on employees.  

As a result, employers have had to renew and rethink their focus on the duty of care towards employees under common law, health and safety obligations under the Occupational Safety and Health Ordinance and related regulations, the disability discrimination provisions under the Disability Discrimination Ordinance (which includes protection on the grounds of mental health), and employees’ rights under the Employment Ordinance, in light of the ever-changing landscape of 2020.

Hong Kong, a city traditionally known for its office-based culture of working long hours, suddenly had to transform itself into a home-working city, with all the challenges that brings. Employers have had to grapple with questions such as: does our Employee Compensation Insurance cover home-working; how do we rearrange workloads and working hours to ensure parents can home-school as well as carry out their job; what can we do to reduce the mental health impact on our employees of Covid-19 and working from home?

Employers have also had to reassess the work-place to ensure it is a safe place to return to, by, for example, introducing 50% office capacity (Team A and Team B), reconfiguring cellular offices and hot-desking arrangements, and introducing increased cleaning schedules – not because the Hong Kong government introduced any specific laws on this as a result of Covid-19, but because of their existing legal obligations regarding employee health and safety.

Employers have talked more about employee well-being this year and have made some temporary or permanent changes to policies around flexible/remote/part-time working. What will be interesting to see is how much of this new, more sympathetic way of working will stick post-pandemic.

What is the legal recourse if an employee refuses to return to the office after a spell of remote working?

This will depend on how the remote working arrangement has been communicated and the reasons for the employee’s refusal to return to the office.

If the employer has made clear to the employee that the remote working period is temporary (due to Covid-19) and that they will be expected to return to the office once notified, then it would be difficult for an employee to argue that they have a contractual right to remain working from home. Their refusal to return to the office may therefore be a breach of contract, entitling the employer to commence disciplinary proceedings and/or termination of the employment.

If the employer has issued variation letters to employees regarding the change of work location and/or has put in place contractual remote working policies which give employees the right to work from home, without being clear on an end point, the employee may well have a contractual argument as to why they can remain working from home.

As the government has never mandated home-working, employees could not claim a statutory right to work from home.

An employer should also take into consideration why the employee is refusing to return to the office. Do they have a legitimate concern for their health and safety if they return to the office, e.g. due to the nature of their commute or because they are a high-risk person or live with one? 

If so, the employer should take reasonable steps to ensure the health and safety of its employees, which may mean allowing them to work remotely for a longer period or considering a more flexible working arrangement so they can avoid peak travel times, for example. 

If the employer fails to take into consideration the employee’s reasons for wanting to continue working remotely, or if the employee is not satisfied with the employer’s response, then the employee may bring or threaten claims of negligence, breach of the Occupational Safety and Health Ordinance, personal injury claims, claims under the Employee Compensation Ordinance, disability discrimination claims and/or breach of the implied term of mutual trust and confidence (leading to constructive dismissal).

Can an employee be legally compelled to get a Covid test?

This will depend on what the employee’s contract says and how the request to take the Covid-19 test is conveyed.

Some employment contracts contain an express provision allowing an employer to direct an employee to attend medical examinations. However, this provision is usually used by employers to assess whether employees are fit to return to work following an injury or sickness. An employer could try to rely on this provision to require an employee to undergo a Covid-19 test although this is a stretch from asking the employee to attend a medical examination. I would suggest not solely relying on this provision.

An employer may also (or alternatively if there is no medical examination provision in the employment contract) decide to give a “lawful and reasonable” instruction for the employee to take the test. Under common law, an employee is under a duty to obey lawful and reasonable instructions by the employer (and sometimes this is an express obligation in the contract too).

As employers are legally required to take reasonable care of their employees’ health and safety under common law and the Occupational Safety and Health Ordinance, it could potentially be considered “lawful and reasonable” to instruct employees to undertake Covid-19 tests; however, thought should be given to whether there are less intrusive means of achieving the same aim.

What are some of the other legal pitfalls for employers surrounding Covid-19?

Personal data collection: When collecting health-related information from employees (including results of Covid-19 tests), employers must ensure that they comply with the Personal Data (Privacy) Ordinance. They must inform employees of the purpose for collecting the data and use the data solely for that purpose. They must also inform the employees of the classes of person to whom the data may be transferred, and their right to request access to this data. Employers must take precautions to protect personal data from leakage or unauthorised access, and only retain the data for a reasonable period that is necessary for its purpose.

Employment Support Scheme (ESS): Employers who applied for the ESS to help pay employee wages during the pandemic should remain aware of the undertaking they gave not to make redundancies during the subsidy period and also aware of the potential consequences if they do.

Working from home while abroad: Due to Covid-19, some employees may wish to work outside of Hong Kong to be closer to family. Employers should consider the tax, immigration, social security, data privacy and employment rights implications of having a Hong Kong employee working in a different jurisdiction before agreeing to such a request.

Negotiating variation of contractual terms: Where employers wish to make changes to pay and benefit structures as a result of the pandemic, they must bear in mind the need to seek employee consent to these changes and how they can incentivise that consent.

Administering redundancies: in the event that redundancies are contemplated due to Covid-19, employers should ensure that any selection criteria for determining who to make redundant is decided upon and applied objectively (to avoid discrimination allegations) and should be aware of the termination payments to be made (including severance payments where the employee is eligible).

Avoid assumptions about how employees are coping: Each employee will cope differently with Covid-19 – some may enjoy working from home, some not, some may have limited concerns about catching the virus, others may be very fearful, some may be fine with juggling work and home life, others not. Employers should ensure that they don’t make blanket assumptions about how their workforce is coping and listen to their employees with regard to their concerns and working arrangements. This will help with retaining employees and avoiding legal claims.

Prediction: What’s likely to be the big employment law story in Hong Kong in 2021?

Ha, I don’t think anyone is brave enough to make predictions given the year we’ve just had! In my dream world, the biggest employment law story next year would be the revolutionising of the parental leave system to make it inclusive for all – no matter who you are and how you choose to have a family – which will in turn help advance equality on gender, race, sexual-orientation, age, and socio-economic status.

Or that new Discrimination Ordinances will be introduced on age, religion and sexual-orientation. Or that whistleblower protection legislation is brought in. However, I expect all of those are too ambitious. 

What may well cause a splash next year is the United Kingdom’s recent announcement that the Hong Kong British National (Overseas) visa for BN(O) citizens will commence from January 2021. With almost 3 million Hong Kong residents eligible to apply to work or study in the UK under this scheme, this may have an impact on talent retention in Hong Kong if it is widely taken up. 

And finally: Anything that employers should be mindful of as Hong Kong’s 14-week maternity leave comes into effect?

Yes, a few things:

  1. Mark your calendars with the date that the legislative change comes into force – 11 December 2020
  2. In advance of that, ensure that you have updated your internal maternity policies and guidance notes and have liaised with your payroll provider on this change
  3. Give a briefing/training session to the HR team and line-managers on this change
  4. Be aware that the additional four weeks of maternity leave are being subsidised by the Government – guidelines should be issued soon on how employers can be reimbursed for this (up to the statutory maximum of HK$80,000 per employee)
  5. Decide whether you will provide enhanced maternity pay for these additional four weeks and ensure that, if you are, this is included in the revised maternity policy and guidance notes, and that internal budgets are adjusted accordingly
  6. Remember that the rules on miscarriage are also changing, so an employee will be entitled to take maternity leave when they have miscarried at or after 24 weeks (subject to meeting other conditions) instead of the current 28 weeks.