In this article first published in HR Online, Kathryn Weaver of Ius Laboris firm Lewis Silkin answers some key questions on employers' duty of care and other pandemic-related issues in Hong Kong, and takes a look ahead to 2021.
How has the duty of care of employees changed for employers during the pandemic?
The law on mental and physical wellbeing of employees hasn't changed in Hong Kong as a result of the pandemic, but the emphasis on it certainly has. Never have employers in Hong Kong had to think more about the well-being of their employees than they have in the last year or so – what with the protests that marked 2019 and the beginning of 2020, three waves of high coronavirus infections and the introduction of the National Security Law. All of these events have had an impact – physical, mental or both – on employees.
As a result, employers have had to renew and rethink their focus on the duty of care towards employees under common law, health and safety obligations under the Occupational Safety and Health Ordinance and related regulations, the disability discrimination provisions under the Disability Discrimination Ordinance (which includes protection on the grounds of mental health), and employees' rights under the Employment Ordinance, in light of the ever-changing landscape of 2020.
Hong Kong, a city traditionally known for its office-based culture of working long hours, suddenly had to transform itself into a home-working city, with all the challenges that brings. Employers have had to grapple with questions such as: Does our Employee Compensation Insurance cover home-working; how do we rearrange workloads and working hours to ensure parents can home-school as well as carry out their job; what can we do to reduce the mental health impact on our employees of Covid-19 and working from home?
Employers have also had to reassess the work-place to ensure it is a safe place to return to, by, for example, introducing 50% office capacity (Team A and Team B), reconfiguring cellular offices and hot-desking arrangements, and introducing increased cleaning schedules – not because the Hong Kong government introduced any specific laws on this as a result of Covid-19, but because of their existing legal obligations regarding employee health and safety.
Employers have talked more about employee well-being this year and have made some temporary or permanent changes to policies around flexible/remote/part-time working. What will be interesting to see is how much of this new, more sympathetic way of working will stick post-pandemic.
What are some of the other legal pitfalls for employers surrounding COVID-19?
Personal data collection
When collecting health-related information from employees (including results of Covid-19 tests), employers must ensure that they comply with the Personal Data (Privacy) Ordinance. They must inform employees of the purpose for collecting the data and use the data solely for that purpose. They must also inform the employees of the classes of person to whom the data may be transferred, and their right to request access to this data. Employers must take precautions to protect personal data from leakage or unauthorised access, and only retain the data for a reasonable period that is necessary for its purpose.
Employment Support Scheme (ESS)
Employers who applied for the ESS to help pay employee wages during the pandemic should remain aware of the undertaking they gave not to make redundancies during the subsidy period and also aware of the potential consequences if they do.
Working from home while abroad
Due to Covid-19, some employees may wish to work outside of Hong Kong to be closer to family. Employers should consider the tax, immigration, social security, data privacy and employment rights implications of having a Hong Kong employee working in a different jurisdiction before agreeing to such a request.
In the event that redundancies are contemplated due to Covid-19, employers should ensure that any selection criteria for determining who to make redundant is decided upon and applied objectively (to avoid discrimination allegations) and should be aware of the termination payments to be made (including severance payments where the employee is eligible).
Prediction: What's likely to be the big employment law story in Hong Kong in 2021?
Ha, I don't think anyone is brave enough to make predictions given the year we've just had! In my dream world, the biggest employment law story next year would be the revolutionising of the parental leave system to make it inclusive for all – no matter who you are and how you choose to have a family – which will in turn help advance equality on gender, race, sexual-orientation, age and socio-economic status.
What may well cause a splash next year is the United Kingdom's recent announcement that the Hong Kong British National (Overseas) visa for BN(O) citizens will commence from January 2021. With almost three million Hong Kong residents eligible to apply to work or study in the UK under this scheme, this may have an impact on talent retention in Hong Kong if it is widely taken up.
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