Rossana Chu (Managing Partner)
Email: rossana.chu@eylaw.com.hk

Jacky Chan (Associate)
Email: jacky-ch.chan@eylaw.com.hk

 

The Hong Kong Government allowed certain businesses to provide services so long as they comply with additional measures including their staff undergoing regular COVID-19 testing every 14 days. Further, the Advisory Panel on COVID-19 Vaccines has considered that the benefits of authorizing the use of the COVID-19 vaccines for protecting against infection outweigh the risks under the current global epidemic situation.

This article discusses four workplace related issues, namely, employees’ obligation to undergo the COVID-19 testing, employers’ rights to collect test results, employers’ responsibility to pay the fees for testing (where applicable) and issues employers should consider if they wish to implement a vaccination policy in the workplace in the absence of local regulations around workforce vaccinations.

 

Conditions for relaxing social distancing measures in Hong Kong

Social distancing measures in Hong Kong for catering and some other businesses have been relaxed gradually as infection rate fell in late February 2021. Catering business, amusement game centers, fitness centers, places of amusement, places of public entertainment, beauty parlours, clubhouses, massage establishments, sports premises, hotels and guesthouses were allowed to provide services so long as the owners and management comply with two additional measures, namely, to:

  •   only permit customers or users who have scanned the “LeaveHomeSafe” QR code, or who have registered their personal details and information in relation to their visits, to enter the premises; and
  •   make arrangement for regular COVID-19 testing (polymerase chain reaction-based nucleic acid test) of staff every 14 days with the notification of the negative results.

Information collected from the above measures shall be kept for 31 days. Failure to comply with the above measures or other requirements may result in the implementation of additional measures to reduce the risk of transmission including but not limited to closure of the premises for a period ranging from 3 to 14 days.

 

Are employees required to undergo regular COVID-19 testing?

The issue is whether requesting an employee to undergo regular COVID-19 testing is a lawful and reasonable request and within the scope of his/her employment.  Considering that such direction is made in accordance with the Government’s policy and is the statutory requirement for resuming normal business (e.g., availability of dine-in services between 6 p.m. to 10 p.m. and headcount for each table), it is clear that the request is lawful, reasonable and within the scope of employment. Therefore, refusal to comply with such lawful and reasonable request may lead to disciplinary proceedings and possibly sufficient ground for summary dismissal against the employee.

 

Employer’s right to request for COVID-19 testing records

A government electronic platform has been set up for the public to download testing record and SMS notification of the result will also be sent to the employees. The employer has a legitimate ground to collect the tests results from its employees. Nevertheless, such collection of these records is regarded as collecting and processing employees’ personal data subject to the Personal Data (Privacy) Ordinance of Hong Kong. Hence the employers are under the obligation to notify the employees the specified purpose for collecting the data (i.e., for infection control and compliance with the Government’s policy) and obtain consent of the employees. 

 

Payment for COVID-19 Testing

Employees can either opt for (1) free testing services provided by the Government at the designated community testing centers; (2) free deep throat saliva specimen collection packs available for collection at various designated post offices, MTR stations and outpatient clinics of the Hospital Authority; or (3) COVID-19 testing offered by private entities recognized by the Department of Health.

Regular COVID-19 testing of the staff is required for the specified business to remain open. An employer may encourage or schedule its staff to undergo the testing free-of-charge at the facilities operated or funded by the Government. However, If it becomes impracticable for an employee to receive free testing (e.g., the public facilities are fully booked), employers should pay for the testing carried out by the employees. The testing fees, if paid by employees, are incurred for carrying out the employees’ duties of which the employees are under the implied duty to indemnify.

 

Workplace safety and vaccination

Under the Occupational Safety and Health Ordinance of Hong Kong and common law, employers have an obligation to take all reasonably practicable steps to ensure the safety and health of all their employees at work and should perform a health and safety risk assessment including the degree and the potential consequences if such risks materialize and what reasonably practicable steps may be taken to mitigate such risks.

 

The key question is whether an employer may legitimately require an employee to be vaccinated.

At this moment, there is insufficient information to predict with certainty the effectiveness of a vaccine and/or any potential side effect. Employers should continue to assess the safety, effectiveness and risks of vaccination as more information and data become available. Nevertheless, it is impracticable in the near future to expect the Hong Kong Government to impose any legal requirement for anyone to be vaccinated. Without any legal backup, it is not legitimate for an employer to “require” its employees to receive any type of COVID-19 vaccination.

On the other hand, employees taking vaccinations may protect against infection for not only themselves, but also all types of people in the workplaces. This is especially so for those premises occupied by the more fragile members of the public such as elderly homes and hospitals as well as for the workplaces with large numbers of visitors without wearing masks like restaurants. An infected employee will also put the colleagues at risk, and timely vaccinations may mitigate such risk. An employee may find it necessary to take the vaccination if he/she is required to travel and work overseas where infection rates are higher. Thus, employers might like to “encourage” its employees to be vaccinated voluntarily, but that should not lead to a direction. However, an employee’s refusal to take vaccination as encouraged by the employer is not a ground for dismissal.

 

Rights and freedom and disability discrimination

Under Article 39 of the Basic Law, the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Therefore, Article 39 may present a challenge to enforcing any “vaccination requirement” that may be imposed by an employer on its employees.

In general, any employer must comply with the contract of employment, the Occupational Safety and Health Ordinance and the Disability Discrimination Ordinance of Hong Kong. Thus, candidates with certain medical conditions who are not hired because of their unwillingness to be vaccinated may have claims against an employer for making vaccination a condition for employment under the Disability Discrimination Ordinance.

 

Data privacy

Depending on the circumstances, the requirement for employees to disclose or to submit proof that they have been vaccinated may be considered a lawful and reasonable order of the employer. If an employer requires its employees to make such a disclosure, then they will need to comply with the Personal Data (Privacy) Ordinance of Hong Kong as the requirement will involve the collection and processing of personal data. The Ordinance requires, among other things, that the collection of the data is necessary for the purpose for which it is collected and is adequate but not excessive. The law also requires data users to take all practicable steps to ensure the personal data collected is accurate and not retained for a period longer than is necessary for the fulfilment of the purpose for which the data is used.

 

Conclusion

Employees should strictly observe the latest COVID-19 directions set out by the Government and undergo testing at least every 14 days. Employers should perform their obligations by ensuring their staff comply with the testing requirements, protect their personal data and pay for the tests where applicable.

The employer should also start thinking about the risks and challenges relating to its vaccine policy for its employees while continuing to observe the law, respect employee’s freedom, and also to monitor closely the latest government guidance.