By Catherine Leung, partner at Lewis Silkin
Note: For the full article on Lewis Silkin’s website, click here.
To detect and cut any invisible transmission chains of COVID-19 in the community, the Hong Kong Government launched the Universal Community Testing Programme (the “UCTP”) on 1 September 2020, providing one-off free testing services to all Hong Kong residents.
Although the UCTP is intended to be voluntary, some employers in Hong Kong have taken a step further by requiring their employees to take part in the UCTP and present negative test results as proof that they are virus free as part of their return-to-office policy.
In this article, we look at the potential legal issues around whether employers can require their employees to be tested for COVID-19.
Can employers require employees to take undertake COVID-19 tests?
The current UCTP is entirely voluntary in nature. Also, there is no statutory right under Hong Kong law for employers to require employees to undertake any medical tests, including COVID-19 tests. Therefore, although employers may ask employees to do the tests, they cannot compel them to do so if they refuse.
Some employment contracts may contain an express provision allowing the employer to direct an employee to attend medical examinations. Usually, this is for the employer to assess whether an employee is fit to return to work following a work injury or if the employee has been on extended or frequent sick leave.
If an employee’s employment contract contains such a provision, the employer may potentially rely on this contractual clause to require the employee to undergo a COVID-19 test.
In the absence of any contractual right to compel an employee to do the test, an alternative basis is to treat taking the test as a “lawful and reasonable” direction by the employer. Under common law, an employee is under a duty to obey lawful and reasonable directions by the employer.
Given that employers are legally required to take reasonable care of their employees’ health and safety under common law and the Occupation Safety and Health Ordinance, requiring employees to undertake COVID-19 tests could potentially be considered a “lawful and reasonable” direction.
If an employee refuses to take the test, an employer may consider taking disciplinary action for refusing to obey a lawful and reasonable direction.
However, whether disciplinary actions are justified is highly fact-sensitive and would depend on whether a test would be highly necessary in the circumstances, considering factors such as the nature of the employee’s duties, the work environment concerned, and how the employee’s refusal would affect the health and safety of the other co-workers and clients of the employer.
Before considering any disciplinary actions, employers are recommended to maintain flexibility, understand the employee’s difficulties and concerns, and strive to make reasonable accommodation as needed.
Data privacy implications
If employees are willing to take the COVID-19 tests and if they provide the testing results to the employer, the employer should ensure that they comply with the Personal Data (Privacy) Ordinance as the testing results would constitute personal data.
In particular, the employer must inform the employees that the purpose for collecting the data is to ensure health and safety in the workplace, and use the data collected solely for this purpose.
The employer must also inform the employees of the classes of person to whom the data may be transferred, and their right to request access of this data. Moreover, the employer must take precautions to protect the data from leakage or unauthorised access, and only retain the data for a reasonable period that is necessary for its purpose.