LD issued guidelines to employers and employees

The Labour Department issued today (March 31) guidelines on labour-related matters arising from Severe Acute Respiratory Syndrome for employers and employees.

The following is the full text of the guidelines:

Severe Acute Respiratory Syndrome (atypical pneumonia) is posing a threat to Hong Kong. The Government is joining hands with the entire community to combat the disease and contain its spread.

As some employees have been unfortunately infected with the virus, or their family members have been so infected, or they have been in close contact with patients suffering from the disease, we appeal to employers to adopt a considerate, compassionate and flexible attitude in dealing with the matter of sick leave and absence from work. It is in the interest of both employers and employees to maintain a healthy and safe workplace. It is also important to preserve harmonious employer-employee relations at this particularly difficult time.

Whilst the Employment Ordinance (EO) and the Employees' Compensation Ordinance (ECO) have specified the rights and obligations of employers and employees, the fact that the disease is a new phenomenon may lead to questions from employers and employees. We therefore issue these guidelines for them to follow.

The Labour Department (LD) stands ready to assist individual employers and employees on the matter. For enquiries, please telephone the Labour Department hotline on 2717 1771.

Rights and obligations of employers and employees under the EO
1. For an employee who has contracted the disease
  - Where an employee has contracted the disease, his employer should grant him sick leave. Under the EO, the employee will receive pay during the period of sick leave. This payment is equivalent to four-fifths of his normal wages and is payable if: -
  - the sick leave is supported by an appropriate medical certificate;
  - the sick leave is not less than 4 consecutive days; and
  - the employee has accumulated the number of paid sickness days taken.
  - The employer should not terminate an employee's contract of employment during his paid sick leave. Such termination is a prosecutable offence under the EO.
  - Where a sick employee has not accumulated sufficient number of paid sickness days to cover the sick leave, the employer, given these exceptional circumstances, should be compassionate and grant the employee paid sick leave alike.
2. For an employee subject to an isolation order or requirement by the Director of Health to undergo daily medical check-up for a period
- As the Department of Health will issue sick leave certificate to such an employee, the same advice as stated in section (A)(1) above applies.
For an employee who has been asked by his employer to stay away from work because the employee has family members or relatives with the disease, or in the case of the employer closing the workplace for fear of the spread of the disease
- This would amount to an act of suspension of service by the employer under the EO. The employer should pay the employee(s) wages and other benefits in accordance with the EO and the employment contract.

Rights and obligations of employers and employees under the ECO

For an employee who has contracted the disease

Severe Acute Respiratory Syndrome is not one of the compensable occupational diseases prescribed under the ECO. However, section 36 of the ECO provides that an employee shall have the right to recover compensation under the Ordinance in respect of a disease which is not a prescribed occupational disease, if the disease is a personal injury by accident arising out of and in the course of employment.
In handling non-prescribed occupational diseases, LD will assess whether the employee concerned has accidentally contracted the disease out of and in the course of employment, having regard to the medical records, relevant information of the case and the provisions of the Ordinance. LD will handle such cases in line with the same principle.
On the face of it, if an employee has contracted Severe Acute Respiratory Syndrome out of and in the course of employment, he shall be covered by the ECO. In case of dispute which could not be resolved with LD's assistance, the final decision rests with the court.

C. Other Important Points to Note

Under the Occupational Safety and Health Ordinance, the employer must, so far as reasonably practicable, ensure the safety and health at work of all his employees. Where it is confirmed that any employee of the workplace has contracted the disease, the employer must cleanse and disinfect the work premises, and clean its ventilation system.
We appeal to employers to provide, where appropriate, face masks to their employees. This will contribute to the community-wide efforts to combat the disease.
The Equal Opportunities Commission (EOC) has advised employers and employees the following:
It is not unlawful for an employer to take action against the employee if the latter refuses to take precautions or comply with measures designed to protect public health.
There is no unlawful discrimination under the Disability Discrimination Ordinance or the Family Status Discrimination Ordinance if the employer asks employees with family members/relatives infected with the disease or employees displaying such symptoms to stay at home and take paid leave.
It is discriminatory if an employer dismisses or subjects to detriment an employee who has (or might have) the disease, or who has a family member or associate who has (or might have) the disease.

The Labour Department will distribute the guidelines tomorrow, together with the "Atypical Pneumonia: Guidelines for the Workplace" published by the Department of Health, to employers' associations, trade unions, human resources managers' clubs and the nine industry-based Tripartite Committees.