{"id":32830,"date":"2020-02-11T11:50:58","date_gmt":"2020-02-11T03:50:58","guid":{"rendered":"https:\/\/zegal.com\/?p=32830"},"modified":"2023-03-10T13:55:04","modified_gmt":"2023-03-10T05:55:04","slug":"the-coronavirus-working-from-home-in-hong-kong","status":"publish","type":"post","link":"https:\/\/zegal.com\/en-hk\/blog\/post\/the-coronavirus-working-from-home-in-hong-kong\/","title":{"rendered":"What to Know About Working From Home in Hong Kong: Covid-19"},"content":{"rendered":"
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 Mid-January of the new year 2020, marked the news of an outbreak of the Coronavirus. This has sparked global fear over the risk of infection and has stoked vigilance among Hong Kong citizens to stay clean and safe. <\/span><\/p>\n

The Hong Kong government allowed civil servants and government employees to work from home until February <\/span>16<\/span>. The government also urged private sector employers and work-places to follow suit, to curb the spread of disease within the city. <\/span><\/p>\n

With educational institutions suspending classes, and the government issuing health warnings to stay home and reduce contact with others, how are professionals supposed to cope? If you are an employee and unsure of your rights, this article is here to help. <\/span><\/p>\n

Do I have to work from home?<\/span><\/h4>\n

In Hong Kong, it is implied that employees have the right to work. Therefore, employers cannot suspend employees without an express power stated in a contract or statute. This would mean that ordinarily an employer would not be able to simply suspend their staff\u2019s employment. <\/span><\/p>\n

However, in the context of the Coronavirus outbreak, requiring employees to be \u2018suspended\u2019 and work from home has a low possibility of legal repercussions. This is due to the regulations that are put in place for quarantine and to protect employee health in the workplace.<\/span><\/p>\n

During the 2002 outbreak of SARS, the Hong Kong Labour Department encouraged <\/span>employers to create work-place contingency plans and allows<\/span> employees in \u201cspecial risk categories\u201d to take leave or work from home. These categories <\/span>may include <\/span>pregnant employees or those who have infected family members. These rules are not mandatory, <\/span>but <\/span>it is <\/span>likely <\/span>the government may adopt <\/span>a similar arrangement <\/span>when dealing with the <\/span>Coronavirus.<\/span><\/p>\n

Employees can also be requested to stay or work from home if they pose a likely threat to the safety and health of <\/span>colleagues within the office. <\/span>This is generally determined case by case, but <\/span>some of the <\/span>obvious indicators include any employees who have recently travelled to Wuhan or Hubei<\/span> Province, the PRC<\/span>, and those who are suspected<\/span> or confirmed carriers of the virus.<\/span><\/p>\n

Therefore, an employer can request an employee to stay\/work from home <\/span>as long as<\/span> it is reasonable, such as protecting others\u2019 health and safety within the workplace.<\/span><\/p>\n

Do I still get paid if I work from home?<\/span><\/h4>\n

In short, yes. Unless the contract of employment has been terminated, your employer should continue to pay wages and should not refuse to do so because you are unable to go to work due to the outbreak. This is especially important for an employer<\/span>,<\/span> <\/span>because<\/span> by continuing to pay normal wages<\/span>, it <\/span>would <\/span>help avoid<\/span> claims surrounding disability discrimination or constructive dismissal<\/span>. <\/span><\/p>\n<\/div>\n<\/div>\n

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Can an employer force me to have my temperature tested or go to the doctor?<\/span><\/h4>\n

Generally, an employer may ask an employee to see the doctor or have <\/span>his or her<\/span> temperature tested if the <\/span>staff<\/span> <\/span>agrees to do so<\/span> voluntarily. Considering the invasive nature of directing an employee to seek out a doctor, a contractually express power might be needed for the employer to do so. While possible, the main concern <\/span>behind <\/span>these medical tests would be data privacy. The Personal Data (Privacy) Ordinance (PDPO)<\/strong>, primarily Data Protection Principle 1, provides the purpose and manner of data collection. The PDPO states that the collection of personal data must be lawful and within fair circumstances. Therefore, the biggest risk employers run when requiring employees to seek a doctor is that <\/span>this <\/span>could possibly be viewed as <\/span>an <\/span>unlawful or unfair collection of personal data. Considering temperature checking and medical records are a form of personal data collection, employers must be vigilant in explicitly explaining, inter alia, to whom the employee\u2019s data will be sent to and for what purpose. Those who fail to do so may be in breach of the PDPO. <\/span><\/p>\n

While there may be legal repercussions for employers who force their <\/span>staff <\/span>to undergo medical testing against their will, employees who refuse to participate in such tests, may be reasonably denied access to the office or other communal workspaces. In terms of medical<\/span> expenses, <\/span>the employer should cover the costs of testing, which should be confined to examining whether an employee is infected or is <\/span>showing <\/span>symptoms. <\/span><\/p>\n

Extra point to note <\/span><\/h5>\n

An employer must have a reasonable ground for requesting an employee to undergo a medical test. In the context of the Coronavirus outbreak, this could include determining whether an employee is infected or <\/span>manifesting<\/span> symptoms of infection to prevent the spread of the virus to other employees within the office. <\/span><\/p>\n

If I contract the <\/span>C<\/span>oronavirus, does the Employees\u2019 Compensation Ordinance (ECO) allow me to receive compensation? <\/span><\/h4>\n

It depends. <\/span>Under the ECO, the <\/span>Coronavirus<\/span> is not (<\/span>as of yet<\/span>) listed as an occupational disease that allows for compensatory payment. While this is so, we can still look to section 36 of the ECO.<\/span><\/p>\n

S. 36 ECO: \u201cnothing … shall prejudice the right of an employee to recover compensation under this Ordinance in respect of a disease to which this Part does not apply, if the disease is a personal injury by accident within the meaning of section 5.\u201d <\/span><\/p>\n

This section essentially <\/span>gives the employees the right <\/span>to receive compensation for <\/span>an illness<\/span> that has not been labelled as an \u2018occupational disease\u2019 if the infection of the disease can be said to be a personal injury by accident occurring amid employment. However, the ruling of whether infection of a disease results in an accidental personal injury is up to the Labour Department\u2019s discretion.<\/span><\/p>\n<\/div>\n<\/div>\n

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The Labour Department would need to find:<\/span><\/h5>\n