香港僱傭法律撮要 – 2020年9月
2020-09-22
Latest Changes to Hong Kong's Employment Scene
2020 has brought about significant changes to the Hong Kong employment scene. Here are the most important developments:
Protection under the Employees' Compensation Ordinance (Cap. 282) for employees who contract COVID-19
The COVID-19 pandemic has brought many challenges for employers and employees. One issue is whether the virus falls within the scope of the protections afforded by the employees’ compensation legislation.
Under the Employees' Compensation Ordinance ("ECO"), an employer is generally liable to pay compensation to an employee who sustains an injury or dies as a result of an accident arising out of and in the course of his/her employment, or suffers from an occupational disease specified in the Second Schedule of the ECO. However, COVID-19 is not currently an occupational disease specified in the Second Schedule.
On 10 February 2020, the Government indicated that it had commenced a study on the proposal to amend the law, but the amendment can only be made when definite medical and epidemiological information on the virus is available (i.e. whether a definite causal relationship exists between the disease and a certain type of work, and whether the disease occurs among the exposed workers at a significantly higher rate than in the general population). In any event, the Government also pointed out that if an employee contracted COVID-19 by accident arising out of and in the course of his/her employment, the employee should inform the employer immediately so that the employer could notify the Labour Department.
On 29 April 2020, the Secretary for Labour and Welfare reiterated that COVID-19 is not currently a compensable occupational disease prescribed under the ECO. However, section 36 of the ECO stipulates that an employee contracting a disease not prescribed as an occupational disease may still claim compensation from the employer under the ECO if it is an injury or death by accident arising out of and in the course of employment.
Employers should therefore promptly notify the Labour Department and their insurance providers in the event that an employee contracts COVID-19 in the course of employment. Employers are also recommended to check whether their employees' compensation insurance adequately covers claims associated with COVID-19, or if any updates to their policies are required.
2020 has brought about significant changes to the Hong Kong employment scene. Here are the most important developments:
Protection under the Employees' Compensation Ordinance (Cap. 282) for employees who contract COVID-19
The COVID-19 pandemic has brought many challenges for employers and employees. One issue is whether the virus falls within the scope of the protections afforded by the employees’ compensation legislation.
Under the Employees' Compensation Ordinance ("ECO"), an employer is generally liable to pay compensation to an employee who sustains an injury or dies as a result of an accident arising out of and in the course of his/her employment, or suffers from an occupational disease specified in the Second Schedule of the ECO. However, COVID-19 is not currently an occupational disease specified in the Second Schedule.
On 10 February 2020, the Government indicated that it had commenced a study on the proposal to amend the law, but the amendment can only be made when definite medical and epidemiological information on the virus is available (i.e. whether a definite causal relationship exists between the disease and a certain type of work, and whether the disease occurs among the exposed workers at a significantly higher rate than in the general population). In any event, the Government also pointed out that if an employee contracted COVID-19 by accident arising out of and in the course of his/her employment, the employee should inform the employer immediately so that the employer could notify the Labour Department.
On 29 April 2020, the Secretary for Labour and Welfare reiterated that COVID-19 is not currently a compensable occupational disease prescribed under the ECO. However, section 36 of the ECO stipulates that an employee contracting a disease not prescribed as an occupational disease may still claim compensation from the employer under the ECO if it is an injury or death by accident arising out of and in the course of employment.
Employers should therefore promptly notify the Labour Department and their insurance providers in the event that an employee contracts COVID-19 in the course of employment. Employers are also recommended to check whether their employees' compensation insurance adequately covers claims associated with COVID-19, or if any updates to their policies are required.
Personal Data and Privacy Guidelines for Employers and Employees
As part of the response to the COVID-19 pandemic, employers have been required to collect and disseminate information about their employees. This has given rise to concerns about data privacy. On 30 March 2020, the Privacy Commissioner for Personal Data issued guidelines for employers on the collection, processing and use of personal data in times of COVID-19. The guidelines provide that:
1. Employers have a responsibility to protect the health of their employees and visitors, in times of the pandemic, it is generally justifiable for employers to collect temperature measurements or limited medical symptoms of COVID-19 information for such purposes.
2. Employers are reminded to follow the general rule that the collection of the data should be necessary, appropriate and proportionate. The relevant data should be processed in an anonymised or de-identified way and the least privacy intrusive measures are preferred.
3. It is justifiable for employers to ask for travel data from employees who have returned from overseas, especially from high-risk areas. The collection of such data should be purpose-specific and minimal data should be collected.
4. Personal data collected for combatting COVID-19 should not be used or disclosed for other unrelated purposes unless express consent is obtained. For the purpose of protecting public health, employers may disclose the identity, health and location data of individuals to the Government and health authorities. Employers may also notify other employees, visitors and property management offices etc if any of their employees contracts COVID-19, without disclosing personally identifiable information about the infected individual.
5. Employers should permanently destroy personal data collected for the purpose of combating COVID-19 when the purpose of collection is fulfilled.
6. Employers should take all practicable steps to protect the personal data collected against unauthorised or accidental access, processing, erasure, loss or use.
7. Both employers and employees should exercise extra caution in relation to the transfer and use of documents when carrying out work-from-home arrangements. The new guidelines set out a number of recommendations in relation to the security of personal data.
Employment Support Scheme
On 8 April 2020, the Hong Kong Government announced a second round of HK$137.5 billion anti-epidemic relief measures. This included an HK$80 billion Employment Support Scheme ("ESS"). The ESS provides a wage subsidy to eligible employers for a period of six months in exchange for the employers' undertaking not to implement redundancy during the subsidy period and to use the subsidy to pay wages of the employees.
Applications for the first and second phases of the ESS ended on 14 June 2020 and 13 September 2020. On 15 September 2020, the Government announced the introduction of the third round of Anti-epidemic Fund. The HK$24 billion package will assist specific industries and people who are most affected by the epidemic.
Amendment to Anti-Discrimination Ordinances
The Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 came into effect on 19 June 2020. The enhanced protections commenced with immediate effect, save for those in relation to breastfeeding which are expected to come into force on 19 June 2021. As a result, the existing anti-discrimination ordinances have been/will be amended to extend protection against discrimination on the ground of breastfeeding and to strengthen protection against unlawful discrimination and harassment. The key changes are summarised as follows:
1. Unlawful breastfeeding discrimination - The Sex Discrimination Ordinance (Cap. 480) ("SDO") will be amended to include prohibitions against direct and indirect unlawful discrimination on the ground of "breastfeeding" (i.e. engaging in the act of breastfeeding a child or expressing breast milk, or being a person who feeds a child with her breastmilk). This covers unlawful discrimination by an employer in workplace.
2. Workplace harassment - The scope of unlawful sexual harassment, disability harassment and racial harassment has been expanded to cover situations where the claimant and the respondent are "workplace participants". "Workplace participants" includes interns and volunteers at the workplace. Employers may be vicariously liable for the unlawful harassment by their "workplace participants" even if the act was committed without their knowledge or approval.
3. Unlawful race discrimination and harassment by imputation and against "associates" - The Race Discrimination Ordinance (Cap. 602) ("RDO") has been expanded to cover unlawful discrimination on the ground of imputed race. Accordingly, it may constitute unlawful race discrimination if one treats another person less favourably thinking that he/she is of a particular race when in fact he/she may not be. Further, the Ordinance has been amended to provide for situations where a person is discriminated against or harassed because of the race of that person's "associate", which includes a spouse of that person, another person who is living with that person on a genuine domestic basis, a relative of that person, a carer of that person, and another person who is in a business, sporting or recreational relationship with that person.
4. Protection against disability and racial harassment by service providers and customers - The amended Disability Discrimination Ordinance (Cap. 487) and the amended RDO now include provisions prohibiting disability and racial harassment by service providers against customers (and vice versa) in the course of providing or acquiring goods, services or facilities.
5. Damages for unlawful indirect sex, race and family status discrimination - Previously, if a respondent could prove that the discriminatory act was not done with the intention of treating the claimant unfavourably, the claimant who succeeded in his/her claim for unlawful indirect sex, race and/or family status discrimination was not awarded any damages. This "intention" requirement has now been removed in the SDO, RDO and the Family Status Discrimination Ordinance (Cap. 527) such that damages may be awarded to a successful claimant even if the less favourable treatment is unintentional.
As part of the response to the COVID-19 pandemic, employers have been required to collect and disseminate information about their employees. This has given rise to concerns about data privacy. On 30 March 2020, the Privacy Commissioner for Personal Data issued guidelines for employers on the collection, processing and use of personal data in times of COVID-19. The guidelines provide that:
1. Employers have a responsibility to protect the health of their employees and visitors, in times of the pandemic, it is generally justifiable for employers to collect temperature measurements or limited medical symptoms of COVID-19 information for such purposes.
2. Employers are reminded to follow the general rule that the collection of the data should be necessary, appropriate and proportionate. The relevant data should be processed in an anonymised or de-identified way and the least privacy intrusive measures are preferred.
3. It is justifiable for employers to ask for travel data from employees who have returned from overseas, especially from high-risk areas. The collection of such data should be purpose-specific and minimal data should be collected.
4. Personal data collected for combatting COVID-19 should not be used or disclosed for other unrelated purposes unless express consent is obtained. For the purpose of protecting public health, employers may disclose the identity, health and location data of individuals to the Government and health authorities. Employers may also notify other employees, visitors and property management offices etc if any of their employees contracts COVID-19, without disclosing personally identifiable information about the infected individual.
5. Employers should permanently destroy personal data collected for the purpose of combating COVID-19 when the purpose of collection is fulfilled.
6. Employers should take all practicable steps to protect the personal data collected against unauthorised or accidental access, processing, erasure, loss or use.
7. Both employers and employees should exercise extra caution in relation to the transfer and use of documents when carrying out work-from-home arrangements. The new guidelines set out a number of recommendations in relation to the security of personal data.
Employment Support Scheme
On 8 April 2020, the Hong Kong Government announced a second round of HK$137.5 billion anti-epidemic relief measures. This included an HK$80 billion Employment Support Scheme ("ESS"). The ESS provides a wage subsidy to eligible employers for a period of six months in exchange for the employers' undertaking not to implement redundancy during the subsidy period and to use the subsidy to pay wages of the employees.
Applications for the first and second phases of the ESS ended on 14 June 2020 and 13 September 2020. On 15 September 2020, the Government announced the introduction of the third round of Anti-epidemic Fund. The HK$24 billion package will assist specific industries and people who are most affected by the epidemic.
Amendment to Anti-Discrimination Ordinances
The Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 came into effect on 19 June 2020. The enhanced protections commenced with immediate effect, save for those in relation to breastfeeding which are expected to come into force on 19 June 2021. As a result, the existing anti-discrimination ordinances have been/will be amended to extend protection against discrimination on the ground of breastfeeding and to strengthen protection against unlawful discrimination and harassment. The key changes are summarised as follows:
1. Unlawful breastfeeding discrimination - The Sex Discrimination Ordinance (Cap. 480) ("SDO") will be amended to include prohibitions against direct and indirect unlawful discrimination on the ground of "breastfeeding" (i.e. engaging in the act of breastfeeding a child or expressing breast milk, or being a person who feeds a child with her breastmilk). This covers unlawful discrimination by an employer in workplace.
2. Workplace harassment - The scope of unlawful sexual harassment, disability harassment and racial harassment has been expanded to cover situations where the claimant and the respondent are "workplace participants". "Workplace participants" includes interns and volunteers at the workplace. Employers may be vicariously liable for the unlawful harassment by their "workplace participants" even if the act was committed without their knowledge or approval.
3. Unlawful race discrimination and harassment by imputation and against "associates" - The Race Discrimination Ordinance (Cap. 602) ("RDO") has been expanded to cover unlawful discrimination on the ground of imputed race. Accordingly, it may constitute unlawful race discrimination if one treats another person less favourably thinking that he/she is of a particular race when in fact he/she may not be. Further, the Ordinance has been amended to provide for situations where a person is discriminated against or harassed because of the race of that person's "associate", which includes a spouse of that person, another person who is living with that person on a genuine domestic basis, a relative of that person, a carer of that person, and another person who is in a business, sporting or recreational relationship with that person.
4. Protection against disability and racial harassment by service providers and customers - The amended Disability Discrimination Ordinance (Cap. 487) and the amended RDO now include provisions prohibiting disability and racial harassment by service providers against customers (and vice versa) in the course of providing or acquiring goods, services or facilities.
5. Damages for unlawful indirect sex, race and family status discrimination - Previously, if a respondent could prove that the discriminatory act was not done with the intention of treating the claimant unfavourably, the claimant who succeeded in his/her claim for unlawful indirect sex, race and/or family status discrimination was not awarded any damages. This "intention" requirement has now been removed in the SDO, RDO and the Family Status Discrimination Ordinance (Cap. 527) such that damages may be awarded to a successful claimant even if the less favourable treatment is unintentional.
Occupational Retirement Schemes (Amendment) Ordinance
The new Ordinance took effect on 26 June 2020. It enhances the existing powers under the Occupational Retirement Schemes Ordinance ("ORSO") to ensure that ORSO schemes regulated under the Ordinance are genuinely employment-based retirement schemes. It also looks to improve the governance of the schemes. The new Ordinance includes the following:
1. Employers of existing ORSO schemes must submit an annual statement to the Mandatory Provident Fund Schemes Authority ("MPFA") to confirm that the schemes are genuinely employment-based.
2. For applications for registered or exempted schemes received by the MPFA after the effective date of the new Ordinance, applicants are required to submit an additional statement to prove that their schemes are genuinely employment-based. As for applications for exemption certificates, the relevant ORSO schemes must be registered under or approved by relevant regulators outside Hong Kong whose functions are largely the same as those of the Registrar.
3. For applications for registered or exempted schemes received by the MPFA before the effective date of the new Ordinance and still under process, the MPFA will process them in accordance with the requirements of the original Ordinance.
Statutory Maternity Leave to be extended to 14 Weeks
The Employment (Amendment) Bill 2019 was passed on 9 July 2020. The Bill introduces the following changes to the Employment Ordinance (Cap. 57) which are expected to come into force by the end of 2020:
1. The statutory maternity leave of female employees who are employed under a continuous contract of employment will be increased from 10 weeks to 14 weeks.
2. The additional four weeks' maternity leave pay will continue to be calculated at four-fifths of the employee's average daily wages, subject to a cap of HK$80,000 per employee in total for the four weeks. The pay for the extended period will be reimbursed by the Government.
3. The period of pregnancy mentioned in the definition of "miscarriage" will be shortened from 28 weeks to 24 weeks (which means that a female employee who suffers a miscarriage at or after 24 weeks of pregnancy may be eligible for statutory maternity leave if other conditions are satisfied).
4. A certificate of attendance will be accepted as proof for entitlement to sickness allowance for a day on which a female employee attends a medical examination in relation to her pregnancy (in contrast with the current position which requires a medical certificate).
The new Ordinance took effect on 26 June 2020. It enhances the existing powers under the Occupational Retirement Schemes Ordinance ("ORSO") to ensure that ORSO schemes regulated under the Ordinance are genuinely employment-based retirement schemes. It also looks to improve the governance of the schemes. The new Ordinance includes the following:
1. Employers of existing ORSO schemes must submit an annual statement to the Mandatory Provident Fund Schemes Authority ("MPFA") to confirm that the schemes are genuinely employment-based.
2. For applications for registered or exempted schemes received by the MPFA after the effective date of the new Ordinance, applicants are required to submit an additional statement to prove that their schemes are genuinely employment-based. As for applications for exemption certificates, the relevant ORSO schemes must be registered under or approved by relevant regulators outside Hong Kong whose functions are largely the same as those of the Registrar.
3. For applications for registered or exempted schemes received by the MPFA before the effective date of the new Ordinance and still under process, the MPFA will process them in accordance with the requirements of the original Ordinance.
Statutory Maternity Leave to be extended to 14 Weeks
The Employment (Amendment) Bill 2019 was passed on 9 July 2020. The Bill introduces the following changes to the Employment Ordinance (Cap. 57) which are expected to come into force by the end of 2020:
1. The statutory maternity leave of female employees who are employed under a continuous contract of employment will be increased from 10 weeks to 14 weeks.
2. The additional four weeks' maternity leave pay will continue to be calculated at four-fifths of the employee's average daily wages, subject to a cap of HK$80,000 per employee in total for the four weeks. The pay for the extended period will be reimbursed by the Government.
3. The period of pregnancy mentioned in the definition of "miscarriage" will be shortened from 28 weeks to 24 weeks (which means that a female employee who suffers a miscarriage at or after 24 weeks of pregnancy may be eligible for statutory maternity leave if other conditions are satisfied).
4. A certificate of attendance will be accepted as proof for entitlement to sickness allowance for a day on which a female employee attends a medical examination in relation to her pregnancy (in contrast with the current position which requires a medical certificate).
Conclusion
The COVID-19 pandemic is likely to continue to have an impact on all employers in Hong Kong. Employers should ensure that they keep up to date on developments. They should also consider reviewing their existing employment policies to ensure that they are compliant with the recent changes to Hong Kong employment law.
The COVID-19 pandemic is likely to continue to have an impact on all employers in Hong Kong. Employers should ensure that they keep up to date on developments. They should also consider reviewing their existing employment policies to ensure that they are compliant with the recent changes to Hong Kong employment law.