By Duncan Abate, Hong Tran and Jennifer Tam from law firm Mayer Brown
As the number of reported cases of the novel coronavirus (2019-nCoV) continues to rise and authorities ramp up preparations to handle possible contagion, so too must employers. Hong Kong is no stranger to handling virus outbreaks. Experience says taking preventative measures, remaining vigilant and preparation are key.
In this update are some Q&As on an employer’s obligation in dealing with a novel coronavirus outbreak including, what are an employer’s legal obligations, can an employer direct an employee to go home or stay at home if there is an outbreak, can an employee be directed to see a doctor and can an employer screen employees and customers before entering its premises, and can an employer quarantine staff?
Do I need to prepare for and have in place a workplace plan to deal with the novel coronavirus? There is no legal obligation in Hong Kong on an employer to specifically have a workplace novel coronavirus response plan. However, the Occupational Safety and Health Ordinance requires all employers in Hong Kong to, so far as reasonably practicable, ensure the safety and health at work of all their employees.
We recommend that employers prepare a detailed plan (if one is not already in place) and implement it. The more detailed the plan the better prepared an employer will be to cope with any novel coronavirus outbreak. A plan should deal with preparations to prevent an outbreak, what happens during the outbreak, and the steps to be taken after the outbreak. Both workplace health and safety issues, and business continuity issues should be covered.
What should a workplace novel coronavirus response plan cover?
Before an outbreak
- Preventive measures. The Centre for Health Protection (CHP) issued Health Advice on Prevention of Severe Respiratory Disease associated with a Novel Infectious Agent in Workplace, which sets out the guidelines on preventive measures that may be taken.
- Disinfecting the workplace regularly.
- Maintaining good indoor ventilation.
- Making sure that employees, suppliers and customers are aware of the employer's plans in the event of an outbreak.
- Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
- If employees are required to travel to areas known to have the virus, whether such travel is necessary.
During an outbreak
- The steps the employer will take to ensure the safety of employees while at work during a novel coronavirus outbreak including how an employer will identify risks of employees becoming infected and how to minimise such risks. The employer may also wish to seek advice from the CHP as to what steps need to be taken, e.g. quarantine requirements.
- Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
- Where employees will work, e.g., home, in the office or in alternative temporary offices.
- At what stage will the workplace be closed and who will decide that.
- How to deal with infection and/or deaths of colleagues, e.g., counselling.
- A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by the novel coronavirus.
- What to do with high risk/exposure staff (e.g., pregnant, key employees and employees who travel)
Can I direct my employees to go home or stay at home if there is an outbreak? Yes, but it depends. If the employee is infected with the novel coronavirus and keeping him or her away from the workplace is reasonably necessary to protect public health, then the employer may direct the employee not to attend at the workplace. The employer should continue to comply with its obligations under the contract of employment (e.g. to pay wages).
Can I direct an employee to see a doctor? Yes, but it depends. Requesting an employee to see a doctor is invasive and an employer would therefore generally require an express power in the contract of employment to direct an employee to see a doctor. Depending upon the circumstances, an employer may require an employee to obtain a clearance from a doctor before being allowed to enter into the workplace.
Do I have to continue to pay wages and provide other employment-related entitlements? Yes. The contract of employment will continue during a novel coronavirus outbreak unless the employment has ceased. An employer cannot refuse to pay wages simply because the employee is unable to attend the workplace or perform any work because of an outbreak. For the full version of this article refer to the Mayer Brown website