An employee who recovers from COVID-19 (Recovered Employee) and seeks to return to work can bring about a range of issues and risks for the employer. Questions that may arise include:

  1. Can the employer require a Recovered Employee to provide additional proof (e.g., medical report/certificate) before allowing him/her to return to work in the office?
  2. If other employees have concerns about working with the Recovered Employee in the same office, can the employer send the Recovered Employee to a different office?
  3. Can the employer make the position of the Recovered Employee redundant?

We will discuss these questions in the context of the employer's obligations, potential liability under the Disability Discrimination Ordinance (DDO) and look at some practical considerations for how to reduce those risks.

Obligations under the DDO

The DDO prohibits the less favourable treatment of an employee on the ground of disability. The definition of disability is broad and includes a disability that presently exists, previously existed, may exist in the future or is imputed.

In the employment context, it is not unlawful disability discrimination if the employer can prove one of the following defences:

  1. Inherent Requirements Defence: the employee cannot carry out the inherent requirements of his/her job because of the disability, or would require services or facilities in order to carry out the requirements of the job which would impose unjustifiable hardship on the employer; or
  2. Infectious Disease Defence: the employee's disability is an infectious disease (which includes COVID-19) and the discriminatory act is reasonably necessary to protect public health.

Can the Employer Require a Recovered Employee to Provide Additional Proof (E.g., Medical report/Certificate) before Allowing Him/Her to Return to Work in the Office?

A person who tested positive for COVID-19 will be a person with a “disability” under the DDO. As "disability" under the DDO covers past disability, hence a Recovered Employee is also protected under the DDO.

The Centre for Health Protection reviews the criteria for releasing a person who has tested positive for COVID-19 from isolation (Discharge Criteria) from time to time. The Discharge Criteria as at 29 July 2020 can be found at:  https://www.chp.gov.hk/files/pdf/updated_consensus_recommendations_on_criteria_for_releasing_confirmed_
covid19_patients_from_isolation29july2020.pdf
.

So if the Recovered Employee satisfies the Discharge Criteria, this is prima facie evidence that he/she no longer has COVID-19. If the employer insists on further proof of the employee's health condition before allowing the employee to return to work, the Recovered Employee may claim that he/she has been subjected to “less favourable treatment” and unlawful disability discrimination.

In determining whether an employee has been subjected to “less favourable treatment”, the Court will examine what would have been done by the employer in the same or not materially different circumstances in respect of another employee who does not have a disability. This is commonly known as the "comparator test".

If there has been a less favourable treatment, the Court will then consider whether the request for additional proof from the Recovered Employee is made on the ground of his/her disability (i.e., the "causation test"). As the request for additional proof is due to concerns surrounding the Recovered Employee still potentially having COVID-19, it would be likely that this causation test will be satisfied. 

Is there a defence to the discriminatory act?

Inherent Requirements Defence: There is an implied inherent requirement that an employee be able to work in a manner that does not pose a risk to the health and safety of fellow employees. An employer also has an obligation under the Occupational Safety and Health Ordinance (OSHO) to ensure, so far as reasonably practicable, the safety and health at work of all its employees.

In order to rely on the inherent requirements defence, an employer should carry out the necessary assessment to determine whether the Recovered Employee poses a real risk to the safety and health of other employees and whether the additional proof is reasonably necessary to protect public health. Factors to consider include the medical condition of the Recovered Employee, his/her duties, the degree of risk to the safety and health of other employees, and the consequences of the risks materialising in order to rely on the defence. If the Recovered Employee does not have any other medical condition and is otherwise fit to return to work, then it would be difficult for the employer to rely successfully on the inherent requirements defence.

Infectious Disease Defence: The employer can rely on this defence if it can show that the request for additional proof is reasonably necessary to protect public health. However, it may be difficult to demonstrate given the Recovered Employee satisfies the Discharge Criteria.

If Other Employees have Concerns Working with the Recovered Employee in the Same Office, Can the Employer Send the Recovered Employee to a Different Office?

As mentioned above, a Recovered Employee will be a person with a disability under the DDO. Applying the comparator test and the causation test, requiring the Recovered Employee to work from a different office (assuming the new office is not an improvement for the employee) may arguably be a “less favourable treatment” and constitute direct disability discrimination.

Again, an employer has to balance both its obligations under the DDO and the OSHO. The Recovered Employee may be required to work in a different office if he/she poses a threat to the health and safety of other employees. But if this was the case, the Recovered Employee should probably not be in the office in the first place. As such, requiring the Recovered Employee to work in a different office may risk breaching the DDO. 

Can the Employer Make the Position of the Recovered Employee Redundant?

Under the DDO, it is unlawful discrimination if an employer terminates the employment of an employee on the ground of disability unless a defence applies. 

For the purpose of the DDO, where an act is done for a number of reasons, one of which is the unlawful reason of disability, the act will be deemed done on the ground of disability regardless of whether that is the dominant reason. As such, the employer must ensure that the reason for making the Recovered Employee's position redundant has nothing to do with his/her disability, otherwise it may amount to unlawful disability discrimination. For example, if the selection of the Recovered Employee's position for redundancy was connected to that employee having COVID-19 or because he/she took sick leave owing to it, then that may give rise to unlawful disability discrimination.

Takeaway for Employers

An employer has to balance its obligation to ensure the safety and health of its employees and the obligation not to treat any Recovered Employee less favourably on the ground of his/her disability. It is essential for an employer to assess all the facts and circumstances of each individual case to determine whether an approach may bring about less favourable treatment to a Recovered Employee due to disability and if it does, then the employer should satisfy itself that a defence under the DDO will apply, e.g., the approach is reasonably necessary to ensure public health. An employer should also communicate to its employees its plans carefully and rationally, and take on board any concerns raised by them to avoid disputes.

Originally published by Mayer Brown, August 2020

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