By Katy Lee and Tanya Mirchandani
Note: The following article appeared on Lewis Silkin’s website on 20 August 2020, the day after Hong Kong was hit by Typhoon Higos
Extreme weather codes and policies
Many employers in Hong Kong follow the Labour Department’s “Code of Practice in Times of Typhoons and Rainstorms”, which recommends that employers should ask employees not to attend their place or work if there are extreme weather conditions (such as a T8) in place or release employees from work if the work day has already begun before the extreme weather warning has been issued.
The Code also advises employers to allow employees sufficient time to return to work after the extreme weather warning has been cancelled and not ask that they return immediately.
As a result of this Code and the Labour Department’s press release on this topic, many companies have put in place extreme weather policies which make clear what employees are expected to do in the event of an extreme weather warning.
However, when the Labour Department’s Code and companies’ policies were drafted, they did not contemplate that a large proportion of the Hong Kong workforce would be working from home in 2020 and how these extreme weather rules would apply in such a situation.
Are employers obliged to give employees a day off when there are extreme weather conditions?
There is no Hong Kong law which states that employees are entitled to a day off in this situation.
Employers have a duty to provide a safe workplace for their employees under common law and the Occupational Safety and Health Ordinance, which includes ensuring employees are safe while at work and when entering and exiting work.
As such, requiring employees not to attend work or asking them to leave work safely as a result of extreme weather conditions would fall within that duty of care.
Also, under the Employees’ Compensation Ordinance, an employer is liable to pay compensation for death or injury incurred when employees are travelling by a direct route from their residence to their workplace, or vice-versa, four hours before or after working hours on a day when a T8 or above or a Red or Black Rainstorm Warning is in force. Employers are therefore likely to want to be cautious about requiring employees to travel to/from work when there are extreme weather conditions.
If an employer has put in place a contractually binding policy or other agreement which states that employees will not be required to work and will instead be entitled to a paid leave day in the event of extreme weather conditions, then there will be a contractual obligation to provide an employee with a day off in that situation.
If an employer usually gives its employees a day off when there are extreme weather conditions must it also do so if its workforce is working from home?
Again, there would be no statutory obligation to do so, and the employer’s duties and concerns in relation to health and safety and employee compensation would somewhat fall away if its employees were not required to leave their homes.
However, if the employer has an extreme weather policy or other document that amounts to a contractually binding agreement and it contains clear language which provides for an employee not to work and have a paid leave day in the event of extreme weather conditions and there is no distinction between whether an employee is working in the office (or other place of work) or at home in order to benefit from this entitlement, then the employee would likely be contractually entitled to the day off.
If the policy is silent on whether it is contractual, or states that it is not contractual, or where there is no policy in place, but in practice the employer has always given employees the day off when there are extreme weather conditions, then the employees may try to argue that there is an implied term of their employment contract that they will have a day off in this situation, even if they are working from home.
An employer may be minded to counter this by saying that even if a term had been implied by its past actions, it is implied only where employees’ health and safety would otherwise be at risk.
The recent T8 in Hong Kong has given employers pause to think about their obligations towards employees in this situation. We would suggest that employers take a moment to review their current policies, contracts and practices on extreme weather conditions and consider whether they may need revising in light of the fact that their workforce is or might be working from home more often this year and in years to come. Employers may also want to send out a separate communication to their employees on what is expected of them when working from home during extreme weather conditions.