With the COVID-19 pandemic ongoing, there have been some confusions around the arrangement and calculation of paid sickness days in relation to mandatory quarantine and compulsory testing, termination of employment, unpaid leave and special work arrangement. In the following section, we have gathered some frequently asked questions from both employers and employees, and clarified the latest regulatory guidelines and requirements.
Q1: Are employees entitled to paid sick leave if they are diagnosed with COVID-19?
According to the Employment Ordinance, an employer should pay sickness allowance to an employee (equal to four-fifths of the average daily wages of the employee) if the following conditions are met:
- the employee has been employed for at least one month under a continuous employment contract;
- the sick leave is supported by an appropriate medical certificate;
- the sick leave taken is not less than four consecutive days; and
- the employee has accumulated sufficient number of paid sickness days (Paid sickness days are accumulated at the rate of two paid sickness days for each completed month of the employee's employment during the first 12 months, and four paid sickness days for each completed month of employment thereafter. Paid sickness days can be accumulated up to 120 days.)
Q2: What if the number of paid sickness days that I have accumulated are not sufficient for the number of days stated by the doctor in the medical certificate?
In the case of insufficient accumulated paid sickness days (for example, you have only 10 days of paid sickness days remaining but your doctor requests you to take a 14-day leave), the extra four days will not be eligible for sickness allowance.
Q3: Will an employee be entitled to paid sickness days if he/she is unable to report duty due to mandatory quarantine or compulsory testing?
If an employee is subject to compulsory testing, he/she should ask for a medical certificate from the Department of Health. If an employee is subject to mandatory quarantine, at the end of the quarantine period, he/she will receive a quarantine order stating the quarantine period and whether the person is infected. You can also request for a medical certificate.
Employees who have medical certificates and meet the requirements for sickness allowance according to the Employment Ordinance can receive the corresponding paid sickness allowance.
*On 25 February, the government announced that the draft amendments to the Employment Ordinance have been completed. The amendments include: if an employee is absent from work to comply with the restrictions under the Prevention and Control of Disease Ordinance Chapter 599 (such as mandatory quarantine or compulsory testing), it is considered an official sickness day.*
Q4: If an employee is unable to report duty due to an infection of COVID-19, can the employer dismiss the employee?
It is clearly stated in the Employment Ordinance that an employer is prohibited from terminating the contract of employment of an employee on his paid sickness day. An employer who contravenes the above provision is liable to prosecution and, upon conviction, to a fine of $100,000. If the employer dismisses the employee at the end of the paid sickness period, it may constitute a breach of the Disability Discrimination Ordinance.
Q5: If an employee is unable to report duty due to compulsory testing/mandatory quarantine order, can an employer require the employee to take unpaid leave?
At present, the Employment Ordinance does not make any provision or restriction on unpaid leave. Yet, it is stated that whether a rest day is paid or unpaid, it must be mutually agreed by both parties. That means an employer cannot unilaterally require an employee to take unpaid leave. Therefore, if an employer insists, its employees have the right to voice out, and both parties should discuss openly and come up with a better arrangement for one another.
Q6: Is being not vaccinated a reason to dismiss any employee?
The government officially rolled out "Vaccine Pass" on February 24. Hong Kong citizens are required to show proof of vaccination when entering specified premises. It is applicable to staff involved in the operation of the premises. If an employee fails to meet this requirement, terminating the contract of employment is considered a lawful dismissal.
The Employment (Amendment) Bill 2022, published on 25 February, has listed out more details, such as the exemptions under “Vaccine Pass”, which include having an exemption certificate issued by a doctor, during pregnancy, breastfeeding, or being diagnosed with COVID-19. If an employee does not fall under any of these circumstances, failing to comply with the “Vaccine Pass” requirement may lead to termination of employment.
Q7: Amid a severe outbreak of the pandemic, is it lawful for a company not making any special work arrangement, such as working from home and providing hygienic items at the workplace?
According to the Occupational Safety and Health Regulations, employers are responsible for providing and maintaining a safe and healthy working environment.
The Center for Health Protection has published various guidelines for the prevention of the spread of COVID-19 in workplaces, such as cleaning public areas twice a day, ensuring well-functioning air conditioning systems, as well as providing appropriate protective equipment to cleaning staff if there is confirmed case in the workplace. So if an employee believes that the employer does not have sufficient hygienic measures in place and has put employees at risk, the employee has the right to lodge a complaint with the Labour Department.
