Will I Get Paid If I Get Sick During Coronavirus Outbreak?
By Will Elton, Last updated: 2022-08-17 (originally published on 2020-03-03)
Employer Obligations During the Coronavirus Outbreak in Hong Kong, Mainland China, Singapore, and Australia
Since the first outbreak of the Coronavirus in Wuhan China in December 2019, it has spread to over 22 countries outside China. The virus is a concerning public health issue for local governments, but it is also a challenging issue for employers.
This article will look at the obligations of employers in a number of countries in the Asia Pacific region.
Employers have a common law duty to take reasonable care of their employee’s safety at work and to ensure a reasonably safe working environment. The Hong Kong government has recommended the private sector to allow work from home or adopt other flexible working arrangements to reduce the congregation of people in the workplace.
An employer who wishes to conduct temperature testing or medical examination on his employees should be mindful of the Data Protection Principle 1 (DPP1) in the Personal Data (Privacy) Ordinance, as temperature tests and medical examinations are deemed as a collection of personal data. Employers have to comply with certain DPP1 principles, such as informing their employees the purpose of such recording and any transfer of their data. It is generally legal to ask employees to undergo temperature testing on a voluntary basis, but it would be unlawful for an employer to penalise an employee who refused to take the test.
Employees contracted with coronavirus are entitled to sickness allowance in accordance with the Employment Ordinance. They are also protected from termination of their employment, or the employer may face a claim for disability discrimination under the Disability Discrimination Ordinance.
Employers in China who fail to provide a safe working environment to employees may face liability to their employees and their families and may even be sanctioned by the government. Employers should observe the legal obligation to prevent and control communicable diseases as stipulated in the PRC Law on the Prevention and Treatment of Communicable Diseases. These requirements include cooperating with relevant authorities on disease prevention, reporting truthful information about the disease and paying full salaries to employees who are being quarantined.
Under the national annual leave regulations, an employer may direct an employee to take statutory annual leave based on business considerations. Under the current situation, employers are encouraged to consult their employees and implement work from home arrangements as far as possible. This is also in line with the PRC government’s endorsement of flexible working arrangements.
If the business was unable to operate at all because of the Coronavirus, employers cannot simply put employees on unpaid annual leave. Their salaries should be calculated as follows:
- First month: regular pay to all employees
- After one month: a minimum amount equivalent to the local minimum wage to employees who have performed work; a “living fee” to employees who have not performed work
Like Hong Kong, Singaporean employers owe a common law duty to take reasonable care of their employee’s safety and working environment. The Ministry of Manpower (MOM) in Singapore webpage which collates all the recommendations made by the Singapore government. The webpage is very comprehensive with detailed guidance on different issues.
Some points to note are:
- Employers who wish to bring back foreign employees with recent travel history to mainland China or South Korea (Daegu city and Cheongdo country) have to seek approval from the MOM and ensure the employees serve their 14-day Stay-home Notice. This period is considered as paid hospitalisation leave.
- As for employees who are not required to go on mandatory quarantine, employers are still encouraged to allow work from home when feasible. It is possible for employers to direct employees to take annual leave, although this will unlikely to be well-received by employees. However, employers cannot treat this period as unpaid leave without the consent of employees.
The MOM has also introduced a temporary scheme to help the companies in the manufacturing and services industries if they experience manpower shortage, details can be found here. We suggest employers in Singapore start by taking a look at the webpage to find out more information under different categories.
Australian employers have a rather strict duty, as far as reasonably practicable, to ensure the health and safety of their employees while at work. Employers are required to take precautionary measures to protect their employees from contracting the coronavirus. For example, cancelling work trips to Mainland China and screening workers who may have been exposed to the virus. Apart from protecting their own employees, they are also responsible for the health of persons who may be affected by their work, such as visitors to their offices or clients. There aren’t clear regulations stating how far the duty of care is, each employer should take into account the circumstances and nature of their business. The bottom line is employers should do everything reasonable to ensure that employees and other persons in contact will not be exposed to a risk of contracting the virus.
Staying alert to announcements made by the Australian government and following their compulsory guidelines is the start. The government currently requires quarantine of individuals who have transited through or travelled to mainland China or have been in contact with a confirmed case. Employers should implement home office arrangements to accommodate employees who need to be self-quarantined. Employees working from home are still entitled to receive full pay and benefits or an employee can make a claim for breach of contract or constructive dismissal. It is unlikely that employers can ask their workers to take unpaid annual leave during this period unless it is mutually agreed.
We hope this article clears some of the major questions regarding employer obligations during this critical period, especially for companies with cross-border operations as the requirements vary from country to country. As the virus is evolving rapidly, stay tuned for updates from your local authorities and make adaptions flexibly. We wish you a safe and healthy workplace!
This article does not constitute legal advice.
The opinions expressed in the column above represent the author’s own.