THE HONG KONG EMPLOYMENT
LAW HANDBOOK
COVID-19 EDITION
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Mahew Durham
Registered Foreign Lawyer
注册外地律师
The Covid-19 pandemic has challenged businesses across the world and raised unprecedented issues
for both employers and employees in the employment law space. In this “The Hong Kong Employment Law
Handbook - COVID-19 Edion” we address your most asked queries relang to everything from working from
home (WFH), to working from abroad, to unpaid leave and annual leave, redundancies and restructurings,
compulsory tesng and vaccinaons, as well as occupaonal health and safety.
Learn more about the key employment law themes that shaped 2020 and remain relevant for the year ahead.
Please don’t hesitate to get in touch if you have any quesons.
新冠肺炎疫情给全球的企业带来了许多挑战，并为雇主和雇员带来了前所未有有关於雇佣条例上的问题。在这
本《香港雇佣条例新冠肺炎疫情指南》中，我们解答了您最常问到的问题，涉及的话题由在家工作(WFH)到在国
外工作，无薪假期和年假，裁员和重组，以及职业安全与健康。
详细了解塑造2020年及于未来一年相关的重要就业法主题。
如有任何疑问，请随时与我们联系 。
THE HONG KONG EMPLOYMENT LAW HANDBOOK
COVID-19 EDITION
Vanessa Ip 叶锡义
Associate
律师
Nick Gall 高嘉力
Senior Partner
高级合伙人
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working from home (wfh)
SECTION ONE
What are the legal implicaons of working from home? And what needs to be considered
for a successful WFH experience?
In Hong Kong, there is no statutory right to work
from home.
1. Preliminary issues
a. Entlement to work from home
In some cases, the employment contract may provide a
right to work from home. Where no contractual rights
exist, it may be possible to agree to work from home in
certain situaons.
b. What is working from home?
Working from home is an arrangement whereby the
employee performs his/her work from home. It could be a
temporary feature in response to special circumstances or
it could be a permanent arrangement.
However, working from home does not automacally
vary the working hours or the nature of the work. The
employee connues to remain bound by the obligaons
in the employment contract and/or employer’s policies
(if any).
Any change to the employment terms needs to be agreed
between the employer and the employee.
2. Factors for suitability of working from home
The following factors should be considered when
determining the suitability of working from home:-
a. Role of the employee
The employee’s role and the nature of work have an impact
on the praccability of working from home. Generally,
such an arrangement is possible where the employee can
carry out his/her work indoors and remotely with the use
of technology. The level of authority of the employee, the
need for face-to-face interacons and the line of reporng
are also factors that should be considered. In addion,
the employee should demonstrate that the quality and
eecveness of work is not compromised when working
from home.
b. Employee’s personal aributes
In addion to the employee’s role itself, the employee’s
personal aributes and skills should also be considered
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carefully. Some of these aributes are:
i. the ability to work independently;
ii. self-movaon and self-discipline;
iii. the ability to eecvely manage me;
iv. employees should be comfortable and able to use
technology for accessing work-related materials and
for work-related communicaon;
v. the ability to separate his/her work life and personal life.
In this regard, the employee’s personnel record, including
his/her recent conduct and performance levels and any
unexpired warnings, should be taken into account before
agreeing to any work from home arrangements.
c. Home environment
The employee should have a private space without
distracons which can be used as a workspace and access
to strong internet and mobile telephone connecons.
In respect of protecng condenal informaon,
employees should be able to receive and make calls from a
quiet space without the risk of being overheard. Employees
could also be required to have document storage facilies
which should migate the risk of condenal informaon
being viewed by third pares.
Employers are required to have in place an insurance
policy that covers the employer’s liabilies under the
Employees’ Compensaon Ordinance (Cap. 282).
Employers should check whether the insurance
policy includes a provision for working from home, as
accidents may happen whilst the employee is out of
the oce.
d. Insurance coverage / health and safety
Employees should also be required to take reasonable
care whilst working from home and should be under an
obligaon to promptly nofy the employer if they suspect
any health and safety concerns, or if an accident or incident
takes place. Employers should also take necessary care in
providing equipment to employees that are safe to use.
3. Seng up working from home
a. Property and equipment
Employers should consider providing its employees with
oce equipment which may include laptop/desktop
computer, document storage facilies, printer, shredder
and mobile phone. Employees should also be directed as
to whether the equipment may only be used for work-
related purposes. It is generally suggested that employees
should not be permied to use personal equipment for
work purposes.
b. Security, condenality and data protecon
Whilst working from home, the contractual obligaons
and the employer’s policies (if any) in respect of security,
condenality and data protecon will connue to apply.
Prior to introducing a work from home arrangement, it will
be prudent for employers to review their condenality
policy to ensure it is adequate to protect their business
and is compliant with the law. The policy should also
contain clear guidelines on authorised use and restricons
with respect to condenal informaon, which may also
require employees to promptly inform the employers of
any potenal or threatened breach of condenality.
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4. Managing working from home
a. Employee’s consideraons
Employees who work from home are subject to the
same rules, procedures and standards of conduct and
performance as if they were working in the oce. In
addion to their day to day tasks, this could include:-
i. Keeping up to date with news, events and
developments related to the employer.
ii. Keeping in regular contact via phone, email or video
conferencing.
iii. The annual leave and sick leave related policies
connue to apply even while working from home.
The employee should report to his/her employer any
absence due to illness or injury.
iv. The employee will connue to be subject to
disciplinary polices of the employer. Accordingly,
any conduct or performance issues that arise from
working from home should be dealt with in the usual
way.
v. Employees connue to owe dues of delity, good
faith, diligence and to act in the best interests of the
employer. During work hours, the employees should
not engage in personal commitments or carry out any
work for any third pares. Equally, the employee should
not treat working from home as taking o from work.
b. Employer’s consideraons
The employer also needs to bear in mind other praccal
consideraons that arise in the course of working from
home:-
i. There is a likelihood of employees feeling isolated
or require guidance and support. Accordingly, the
employee’s manager and/or members of human
resources team should be suciently trained to
understand potenal issues and be readily available
to address issues of the employees over telephone or
video-conference.
ii. It would not be appropriate to hold meengs in the
employee’s home, or to give out the employee’s
residenal address as it could amount to a potenal
breach of the Personal (Data) Privacy Ordinance
(Cap.486).
5. Ending the work from home arrangement
A work from home arrangement could be permanent
or temporary. In either case, both employers and
employees should have the right to terminate the work
from home arrangement on reasonable noce.
It is advisable to set out the noce requirement and
grounds of terminaon in wring. If the work from home
arrangement is temporary, the duraon should be clearly
spulated. Otherwise, it would be prudent to provide for
a clause regarding the extension and/or terminaon of
the work from home arrangement.
Key Points to Consider
• Employers should implement a detailed work
from home policy.
• The work from home policy should ideally provide
the employee with sucient informaon and
direcon to allow the employee to eecvely
work from home.
• The policy should also set out who to seek
assistance from during any period of working
from home.
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Guidance for Protecng Personal Data in WFH Arrangements
The Privacy Commissioner for Personal Data (“PCPD”) issued Guidance Notes for (1) organisaons, (2) employees, and (3)
users of video conference soware, in January 2021 with a view to enhance measures for data security and data privacy
in the use, storage and handling of personal data when employees work from home (“WFH”).
Guidance for Organisaons
Organisaons, in their capacity as data users, must comply with the Data Protecon Principles (“DPP”) set out in Schedule
1 of Personal Data (Privacy) Ordinance (Cap 486) (“PDPO”) while collecng, handling and using personal data. Briey, the
six DPP are:-
Personal data must be collected lawfully and for a purpose that is directly related to
the acvity of the data user;
Data users are required to take praccable steps to ensure that the data is accurate
and is not retained for longer than necessary;
Unless consent of the data subject is obtained, the data must be used only for the
purpose for which it was obtained;
Praccable steps must be taken to prevent unauthorised access, processing, use, loss,
or erasure of personal data
Data users are required to maintain openness regarding their policies and pracces for
use of data and the purpose for which the data is collected; and
The data subjects have a right to access their personal data and request correcon of
personal data. Any refusal to allow access must be reasoned.
1. Data collecon:
2. Accuracy and retenon:
3. Use of data:
4. Data security:
5. Openness and
transparency:
6. Access and correcon:
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The PCPD considers employers to be primarily responsible for data security and personal data privacy. The PCPD
recommends the following measures that employers may consider adopng while implemenng WFH arrangements:
Conducng a risk assessment of data security and employees’ personal data privacy prior to formulang
policies;
Reviewing and revising exisng policies and pracces and provide sucient guidance to the employees in each
case regarding transfer of data and documents, remote access to networks and data, erasure and destrucon
of unnecessary data and materials, and the handling of data breaches;
Training and providing support to employees for WFH arrangements to ensure data security with designated
sta to address concerns arising during WFH;
Providing employees with devices and including protecve measures such as passwords, an-malware
soware, remote access to devices, prevenon of transfer of data from corporate to personal devices;
Encouraging the use of virtual private networks to enable secured remote access to corporate networks; and
Implemenng security measures for remote access such as granng access on a need basis only and reviewing
of remote access logs to track suspicious acvies.
Guidance for Employees
During WFH, employees will have access to employer’s data which may be processed through networks that are beyond
the employer’s control. As such there is a risk of the employee breaching the DPP, parcularly the data security principle.
Accordingly, the PCPD recommends adopng the following measures to guard against the potenal risks:-
Requiring employees to adhere to their employer’s policies on handling of data;
Suggesng the use of corporate devices during WFH for all work-related maers;
Avoiding working in public places in order to prevent disclosure of personal data and restricted informaon.
However, if working in a public place is unavoidable, employees should use security measures such as screen
lters and mobile hotspots rather than using public Wi-Fi;
Implemenng security measures to be taken while using Wi-Fi such as strong passwords, review of devices
connected to the network and use of updated security protocols;
Requiring employees to use corporate email accounts for all work-related communicaons; and
Whilst it is not advisable to carry physical documents out of oce, in the event removal becomes necessary,
employees should seek approval of their supervisor. Where praccable, the personal data should be redacted
before removal and only necessary documents should be removed from the oce. In addion, employees
should have secure ling cabinets at home and should follow the employer’s established shredding procedures.
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Guidance for users of video conferencing soware
The increased use of video conferencing soware by organisaons and employees in the course of WFH poses addional
risks to data security and personal data privacy. To provide safeguards, the PCPD recommends the following measures:-
Prior to opng for a parcular video conferencing soware, organisaons are encouraged to assess the risks
associated with its use;
When using video conferencing facilies, strong passwords and a secure internet connecon should be used;
The host of the video conference should take measures such as seng up unique meeng ID, virtual waing
room to allow authorised access only and obtain consent of parcipants before recording and storing records;
and
Implemenng security measures to be taken while using Wi-Fi such as strong passwords, review of devices
connected to the network and use of updated security protocols;
The parcipants should also be careful that their background seng during the video conference and screen
sharing funcons do not lead to inadvertent disclosure of personal data and restricted informaon.
Whilst it is not advisable to carry physical documents out of oce, in the event removal becomes necessary,
employees should seek approval of their supervisor. Where praccable, the personal data should be redacted
before removal and only necessary documents should be removed from the oce. In addion, employees
should have secure ling cabinets at home and should follow the employer’s established shredding procedures.
Key Points to Consider
• Although the Guidance lacks statutory force,
it serves as a helpful guide for organisaons
to consider when implemenng WFH
arrangements.
• Employers should consider reviewing their
exisng policies and incorporate addional
measures as appropriate to protect the
personal data of individuals and other
condenal informaon.
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Remote working arrangements have become prevalent in response to the challenges posed by the pandemic such as
risk of infecons, travel restricons and quaranne requirements in Hong Kong and elsewhere. Many employers are also
considering remote working as ‘the new normal’ given the reduced operaonal costs.
For some employees, remote working may mean
working overseas.
It is important to ensure that the employee has a
right to work in the overseas jurisdicon.
• Any agreement to work remotely overseas should be
documented in wring along with sucient details
on the applicable law, nature of dues, length of stay
overseas, and necessary indemnies in relaon to
taxes and in the event the employee contravenes any
law while working overseas.
• Employers should also review their exisng policies
and insurance coverage and consider updang their
policies or implemenng new policies for employees
working remotely.
Depending on the role of the employee, employers
may also consider varying the employment contract
and engaging the employees on an independent
contractor basis.
Key Points to Consider
• Prior to allowing any employee to work remotely
overseas (especially if the employee will be
present in the overseas jurisdicon for more than
183 days in a 12-month period), it is suggested
that employers seek appropriate legal advice
and tax advice in Hong Kong and the overseas
jurisdicon.
Remote Working from Overseas
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annual leave and unpaid leave –
q&a with our employment lawyers
SECTION TWO
Can an employer force an employee to take paid annual
leave?
Annual leave falls into two categories:
1. Statutory annual leave: which is governed by the rules
under the Employment Ordinance (Cap. 57) (“EO”); and
2. Contractual annual leave: which is any annual leave
in excess of statutory annual leave as agreed in the
employment contract;
If an employment contract does not disnguish between
statutory annual leave and contractual annual leave, the
employer may be able to rely on the statutory provisions
in respect of requiring employees to take leave. Pursuant
to the EO, an employer can generally direct an employee
to take statutory annual leave by giving at least 14 days’
noce in wring following consultaon with the employee.
The excepon to this rule is that generally an employer
cannot force an employee to take statutory annual leave
in the year of its accrual.
In terms of contractual annual leave, the right to direct
an employee to go on contractual annual leave would
depend on the specic terms of the annual leave clause.
Can Unused Annual Leave be Forfeited?
Statutory annual leave cannot be forfeited. Untaken
statutory annual leave must be rolled over to the following
year or, in certain limited circumstances, may be paid out,
but this is an expensive opon.
In the case of contractual annual leave (where clearly
disnguished), however, the employer is free to follow the
relevant provisions of the contract. This may include, for
example, a capped or no carry forward policy in respect of
contractual annual leave and the right to forfeit untaken
contractual annual leave in specic circumstances.
Strategies and Approaches Relang to Annual Leave
Annual leave is an important and prized entlement of
employees. As such, employers need to tackle the issue
of “backlogs” with both rigour and sensivity when
considering what strategies are available to them.
Firstly, employers should be clear about the situaon for
their sta: review employment contracts and annual leave
policies to be clear about how much leave employees
have and whether specic rights and condions apply to
contractual annual leave; and update and check HR
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records contractual annual leave; and update and check
HR records to calculate accurate entlements. This is vital
for devising the best approach and maintaining the trust
of employees.
Clear communicaon with employees and consistency of
approach is also key to avoid mis-trust and disputes. One
of the underlying purposes of annual leave and a primary
reason for having minimum thresholds of statutory annual
leave is to promote and maintain employees’ physical and
mental wellbeing, as well to allow me with family and on
external pursuial so a clear raonale for taking periodic
breaks during the course of the year.
Can an employer unilaterally require employees to take
unpaid leave?
In Hong Kong, there is no statutory right that
entles an employer to instruct their employees to
take unpaid leave .
Therefore, unless there is an express provision in the
employment contract, the employer cannot unilaterally
force an employee to take unpaid leave.
If an employer decides to force an employee to take
unpaid leave against his/her wishes, in the absence of an
express contractual term, it could amount to a breach of
contract. Where an employee volunteers to go on unpaid
leave, it is suggested that the agreement is documented
in wring.
What course of acon can an employer take if an
employee refuses to accept the unpaid leave opon?
The course of acon available to an employer depends on
whether the employment contract entles the employer
to direct the employee to take unpaid leave. Where there
is no contractual right, the employer cannot force the
employee to take unpaid leave.
If there is a contractual right, the employer can treat
the refusal to comply with its direcon as a refusal to
comply with a lawful order. The employee should be rst
warned about the refusal, and if he/she persists, then the
employer may consider taking disciplinary acon against
the employee. However, even in this case, it is unlikely
that a singular incident of an employee refusing to go on
unpaid leave would entle the employer to terminate the
employee for cause.
How much unpaid leave can an employer expect
employees to take?
The number of days an employer can direct his employee
to take as unpaid leave would depend on the specic
terms of the unpaid leave clause. Any addional duraon
of unpaid leave should be agreed between the employer
and employee.
In the absence of a contractual right, an employer
may consider policies to incenvise the employees
to take unpaid leave.
How can an employer incenvize employees to take
unpaid leave?
This may include an assurance of future increases in
wages, for example, when the business environment
improves, or explain to the employees that if no employee
accepts the unpaid leave opon, there may be a possibility
of redundancies. However, please note that an employer’s
right to terminate on grounds of redundancy may be
aected if the employer subscribes to the Hong Kong
Government’s proposed Employment Support Scheme.
How should an employer approach the unpaid leave
opon?
Subject to any contractual right which entles an
employer to direct its employees to take unpaid leave,
where the employer is asking its employees to take
unpaid leave, it should direct such request to all sta in
the relevant department/ team that has been aected by
the disrupon in business.
How much noce should be given to employees requiring
them to take unpaid leave?
The noce period would depend on whether the contract
provides the employer the right to direct the employees to
take unpaid leave. In such case, if the contract spulates a
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specic noce requirement, the clause must be followed.
If the clause does not provide a noce period, it should be
agreed between the employer and the employee.
In the absence of a contractual right, where the unpaid
leave is mutually agreed by the employer and employee,
no noce period is required.
Key Points to Consider
• The situaon with Covid-19 connues to
evolve and communicaon with employees is
key during this me.
• Where possible, employers should try to
be exible on working pracces in order
to maintain employee relaons and reduce
anxiety and panic.
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managing redundancies during the
pandemic
SECTION THREE
There is no regulatory framework in Hong Kong that
governs the redundancy process nor are employers
required to consult their employees prior to making
him or her redundant.
In general, employers can select which employees to
terminate so long as the employee has not been selected
due to discriminatory reasons (for e.g. due to his disability,
gender, race or family status) or where it is otherwise
unlawful to do so.
The Employment Ordinance (Cap. 57) (“EO”) provides that
it is unlawful for an employer to terminate the employment
of, or give noce of terminaon to an employee who has:
• suered a work-related injury entling him to
compensaon under the Employees’ Compensaon
Ordinance (Cap. 282) (unless consent of the
Commissioner for Labour has been obtained); or
• suered temporary incapacity for a period not
exceeding three days in circumstances in respect of
in respect of which the employee is entled to claim
employees’ compensaon.
It is also unlawful for an employer to terminate an
employee’s employment in the following circumstances:
• where the employee is undertaking jury service;
• where the employee is absent from work on sick
leave and is in receipt of sickness allowance, other
than where summary dismissal is jused;
• where the employee has given evidence under the
Factories and Industrial Undertaking Ordinance
(Cap. 59);
• where the employee has a spent convicon, and the
employer terminates the employee’s employment on
the basis of that convicon or failure to disclose it;
• where the employee is taking accrued statutory
annual leave; and
• where the employee is a female employee on a
connuous contract of employment who has given
noce of her pregnancy to the employer. This does
not prevent an employer from terminang the
employee’s employment where summary dismissal is
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jused, or in the rst 12 weeks of the employee’s
probaonary period.
It is usually best pracce for employers and employees
alike, to talk through circumstances where redundancy
may be avoided and if so, this may produce “win-win”
situaons.
What are Some Praccal Consideraons aer an
Employee is Made Redundant?
Employers should be prepared to address a number of
praccal consideraons aer a decision to terminate an
employee by reason of redundancy is made:
1) Statutory severance payment
Under EO, where an employee has been employed for
at least 24 months, he or she is entled to a statutory
severance payment equang to two-thirds of the last full
month’s salary, or two-thirds of HK$22,500 (whichever is
lower), mulplied by the number of years’ service. A pro-
rata amount applies in respect of any incomplete year.
The cap on statutory severance payments is HK$390,000.
3) Penalty for failure to pay terminaon payments
An employer who fails to make terminaon payments due
as soon as praccable and in any case not later than 7
days aer the day of terminaon, may be liable to criminal
prosecuon. If found guilty, the maximum penalty is a ne
and/or up to three years imprisonment.
Is There Anything Else That Should be Considered?
Condenal Informaon
Whilst common law implies certain obligaons on
employees not to misuse informaon which amounts to
a trade secret or certain informaon imparted through
a duty of condence, for greater protecon for an
employer’s condenal informaon, the employer may
agree to further contractual dues of condenality.
2) Other common payments
In addion to the above statutory severance payment,
employers may also be required to make further payments
including:
• contractual severance payments (in excess of the
above statutory minimum);
• wages up to and including the date of terminaon of
employment;
• payment in lieu of noce (if applicable);
• payment in lieu of accrued but untaken annual leave;
allowances and/or reimbursement of personal
expenses contracted and incurred by the employee
(such as for food, travel, housing, cost of living);
• any maternity leave pay due;
• accrued end of year payment;
• any sickness allowance due;
• any payment of bonuses and/or commissions; and
• any deferred compensaon including stock or stock
opons where terminaon accelerates vesng.
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Return of Company Property
It may be sensible for employers to consider including
an express clause in the employee’s employment
contract and/or separaon agreement requiring
the employee to return all company property and/
or delete any condenal informaon and materials
relang to the business of the employer prior to his
or her departure.
Such condenal informaon may include customer
lists and records, electronic data and oce les, which if
disclosed, may be very valuable to a competor and cause
signicant damage to the employer. Oce equipment,
such as keys, laptops and credit cards, should also be
returned on terminaon.
Post Terminaon Restricve Covenants (“PTRs”)
In certain circumstances, the departure of an employee
could have an adverse eect on an employer’s business
parcularly if the deparng employee joins a direct
competor, solicits and/or poaches clients and sta.
Accordingly, an employer can agree certain PTRs to
protect its business from such conduct.
PTRs in contracts which restrict an employee’s acvies,
especially aer his/her employment has ended, are
considered prima facie unenforceable as being contrary
to public policy. Two condions must be fullled if the
restraint is to be held valid. First, the employer has
shown a legimate interest to protect, in relaon to
that employee’s employment. Second, the PTR must be
shown to be no wider than is reasonably necessary for
the protecon of that interest.
PTR is unreasonable, individual words or phrases may be
ignored, so perming a reasonable call to stand.
It follows that when draing PTRs, employers should
take care to ensure that the PTRs are reasonable in scope
when properly construed.
Retaining Employee Records
There are various statutory obligaons which require
employers to keep certain records such as identy
records, employment records, leave records and records
in relaon to the employee’s right to work. Such records
must be retained for a minimum of 6 months aer the
terminaon of the employment and should generally be
retained for a longer period in case of any future disputes.
Terminaon payments
• contractual severance payments (in excess of the
above statutory minimum);
• wages up to and including the date of terminaon
of employment;
• payment in lieu of noce (if applicable);
• payment in lieu of accrued but untaken annual
leave;
• allowances and/or reimbursement of personal
expenses contracted and incurred by the employee
(such as for food, travel, housing, cost of living);
• any maternity leave pay due;
• accrued end of year payment;
• any sickness allowance due;
• any payment of bonuses and/or commissions; and
• any deferred compensaon including stock or
stock opons where terminaon accelerates
vesng.
• Is the employee entled to any statutory and/or
contractual severance payment?
• Has the employee been paid all other applicable
terminaon payments within 7 days including:
If a PTR is held to be unreasonable, it will be struck
down and will not be enforced unless the oending
parts can be severed by applying the “blue pencil”
test.
Courts cannot enforce a restricon of lesser extent which
would have been reasonable. However, if only part of a
Nocaon
• Has the employee been noed of the decision in
wring?
• Does the nocaon clearly idenfy the employee’s
last day at work and terminaon payments?
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• Has the employer noed the Inland Revenue
Department if an employee intends to leave Hong
Kong?
• Is the employer required to withhold monies payable
to an employee intending to leave Hong Kong?
Taxaon obligaons
MPF obligaons
• Has the employer arranged for the last payment of
the employee’s mandatory contribuons on or before
10 days aer the last day of the calendar month
following the employee’s terminaon of employment?
• Has the employer noed the MPF scheme trustee
about the employee’s terminaon of employment
within 10 days aer the last day of the calendar
month in which the employee le the company?
• Has the employer given wrien noce to the MPF
scheme trustee regarding the date of cessaon of
employment?
• Where a statutory severance payment has been
made to the employee, has the employer considered
whether to apply to the MPF scheme trustee to
withdraw the relevant amount from the employee’s
accrued benets to oset the statutory severance
service payment?
Key Points to Consider aer a Redundancy
• Employee should return all company property
and/or delete any condenal informaon
and materials relang to the business of the
employer prior to his or her departure.
• Employers should consider whether any post
terminaon restricons are necessary and in
place.
• Employers should keep certain records such
as identy records, employment records, leave
records and records in relaon to the employee’s
right to work.
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other key employment law themes
SECTION FOUR
The Hong Kong Government has lowered the threshold
for compulsory COVID-19 tesng to idenfy and curb the
transmission chain of COVID-19 by implemenng new
measures under the Prevenon and Control of Disease
(Compulsory Tesng for Certain Persons) Regulaon (Cap.
599J) (“Regulaon”).
What is the new compulsory tesng threshold?
As announced on 1 February 2021, a compulsory tesng
noce will be applicable:
• In the case of residenal building: if a single
untraceable conrmed COVID-19 case is discovered
in a residenal building (including buildings used
for both residenal and commercial purposes) or
detected in the sewage samples of the building; or
• In the case of a workplace: if two or more conrmed
COVID-19 cases are found in a workplace.
What happens if a residenal building or a workplace is
subject to a compulsory tesng noce?
Upon being included in a compulsory tesng
noce, all the residents / persons in the workplace
(as the case may be) are subject to compulsory
COVID-19 tesng.
Furthermore, all persons who have been present at the
relevant premises for more than 2 hours in the period
specied by the Government (such a visitors, part me
employees etc) are also subject to the compulsory tesng.
Once the Government delineates a restricted area and
makes a “restricon-tesng declaraon” (popularly known
as a “lockdown”), all the individuals are required to stay
within the restricted area, follow the Government’s
arrangements for undergoing compulsory tesng, and are
only permied to leave once the appropriate test results
are obtained. During such lockdowns of workplaces,
workplace operaons must be suspended and the relevant
residenal building and/or workplace must be disinfected.
Compulsory Tesng and Ambush Lockdowns
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Are there any penales for not following the direcons
of the Government?
Yes. In addion, the relevant person will also be subject
to a compulsory tesng order (“Order”) for undergoing
tesng within a specied me frame. Failure to comply
with such an Order is an oence liable to a ne at level 4
(HK$25,000) and imprisonment for six months.
Is there any obligaon to provide informaon to the
Government?
The Regulaon empowers Government ocials to seek
informaon and assistance from any individual when
necessary. Accordingly, there may be circumstances
where either employers or specic employees may be
subject to such requests. A failure to comply with such a
request constutes an oence and is subject to a ne at
level 3 (HK$10,000).
Compulsory tesng and, in parcular, the broad
right of the government to designate specic areas
in so called “ambush lockdowns” presents a risk of
signicant disrupon and uncertainty for employers.
A person who fails to comply with a compulsory
tesng noce is liable to a xed penalty of
HK$5,000.
Key Points to Consider
Employers should remain alert to the evolving and
uid situaon by, for example:
• Communicang with building management contacts
regarding detecon and reporng of potenal cases
• Reviewing business connuity and alternave
working protocol.
• Re-organising work teams and rosters to ensure
that there is adequate coverage of key funcons at
any given me.
• Communicang with employees clearly and
regularly
• Maintaining records by using the “LeaveHomeSafe”
app or other digised systems for recording entry
and exit at the workplace.
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Covid-19 Tesng and the Workplace
Employers have a common law duty, as well as a
statutory duty under the OSHO, to take measures
as far as reasonably praccable to ensure safety
and health of all employees at work.
Do employers have a right to ask their employees to get
tested for Covid-19?
Unless an employee is subject to compulsory tesng, such
as under a government ambush lockdown, or is employed
in a sector which is subject to compulsory tesng such as
catering services, there is no clear and conrmed basis
for employers to lawfully require employees to undergo
Covid-19 tesng.
Given the contagious nature of Covid-19 and the health
risks it poses, however, employers could seek to lawfully
direct or reasonably request employees to undergo tesng
in compliance with the obligaons under the Occupaonal
Safety and Health Ordinance (Cap 509) (“OSHO”).
What can employers do if an employee refuses to
undergo a regular Covid-19 test?
If an employee refuses to comply with a lawful and
reasonable direcon (unlike a mere request) from the
employer, it may entle the employer to take disciplinary
acon against the employee. In this regard, employers
should review and follow their disciplinary policies.
Employers should weigh the reasons for refusal against the
proposed sancons, as well as consider other measures
that potenally could be used, such as requiring the
employee to take annual leave, unpaid leave, or requiring
them to work from home.
Can employers ask their employees to provide Covid-19
test reports?
Employers do not have a statutory right per se to ask
for test reports. However, in compliance with the dues
under the OSHO, it may be reasonable for employers to
require employees to produce test reports.
Employers are responsible to ensure that the no employee
is discriminated against on the basis of the medical reports.
Key Points to Consider
• In Hong Kong, employers do not have a statutory
right to mandate their employees to undergo any
form of medical tests.
• If employees refuse to undergo Covid-19
tesng, subject to contractual terms, requiring
the employees to work from home or from an
alternave oce may be another alternave an
employer could consider.
• It will be reasonable for employers to direct
employees to declare if they know they have
been in contact with anyone who has tested
posive or if they have been at places where
Covid cases have been detected
Given the sensivity of the situaon, and without
further government direcon, it is recommended
that employers ask and seek to persuade employees
to have tests, as opposed to insisng.
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Hong Kong’s COVID-19 Vaccinaon
Programme
Similarly, although employers have a duty at Common
Law and under the Occupaonal Safety and Health
Ordinance to provide, as far as reasonably praccable,
a safe working environment for employees, there is no
guarantee that enforcing COVID vaccinaons would be
deemed reasonable for this purpose. This is perhaps more
likely in the context of hospital and health workers, or for
employees in other businesses requiring frequent and
close proximity with others, but it remains highly sensive
and potenally contenous.
Risk of discriminaon
The protecons under Hong Kong’s an-discriminaon
legislaon include protecon against discriminaon on
There is no clear and absolute right for an
employer to insist that an employee is vaccinated.
While employees are obliged to follow the lawful and
reasonable direcon of their employer, it is not clear
whether such a direcon would be deemed reasonable.
Employees could provide a number of reasons against the
vaccinaon programme and this is a sensive area. This
potenally could include an argument that forcing them
to be vaccinated is a breach of their human right of self-
determinaon.
the basis of pregnancy and disability. The denion of
“disability” is very broad, including medical condions and
the presence in the body of organisms causing, or capable
of causing, illness or disease. Accordingly,
Employers should be cauous as to how they treat
employees who refuse to be vaccinated, as well as
potenal hires who have not been vaccinated.
Data privacy consideraons
Employers will also need to take data privacy into account
and comply with the requirements of the Personal Data
(Privacy) Ordinance if they intend to track which employees
have (and have not) been vaccinated or otherwise collect,
store or process informaon relang to the vaccinaon of
employees. This would include informing employees as
to whether they are required to provide informaon and
ensuring that any informaon provided is held securely
and kept up-to-date.
Key Points to Consider
• We recommend keeping a close eye on
government guidance and updates as the
programme is rolled out.
www.gallhk.com
All material contained in this Handbook is provided for general informaon purposes only and should
not be construed as legal, accounng, financial or tax advice or opinion on any specific facts or
circumstances and should not be relied upon in that regard. Gall accepts no responsibility for any loss
or damage arising directly or indirectly from acon taken, or not taken, which may arise from reliance
on informaon contained in this Handbook. You are urged to seek legal advice concerning your own
situaon and any specific legal queson that you may have.
Contact us:
Nick Gall ([email protected]om)
Mahew Durham (mahew[email protected])
Vanessa Ip (v[email protected])
