The Novel Coronavirus: Potential employment issues learnt from Hong Kong

Novel Coronavirus Background

As of today, the number of infected is over 77,000 and the global death toll recently surpassed 2,000.  Due to the magnitude of severity, the Novel Coronavirus is the sixth Public Health Emergency of International Concern (PHEIC) declared by the WHO since 2005.  The previous PHEIC epidemics include: two Ebola outbreaks (Africa), Zika Virus (Latin America), Polio (Syria) and the Swine influenza (Global).

Although not enforceable, a PHEIC declaration allows the World Health Organisation (WHO) to influence its member states to respond to crisis under their recommendation.  In addition, each country has also implemented their own relevant countermeasures and precautions to combat the recent Novel Coronavirus.  This heighted duty of safety has raised sudden and unique employment issues in the workplace.

Despite having only 13 confirmed cases in the UK so far, the government urges the public to remain vigilant, and advises against all travel to Hubei and all but essential travel to elsewhere in China.  The Health and Safety Executive (HSE) has set previously set out health guidelines to combat infections at work, such as in relation to the Severe acute respiratory syndrome (SARS) which bears an 80% similarity to the new Novel Coronavirus.  Most recently, the Health Protection (Coronavirus) Regulations 2020 was created to provide guidance to prevent further transmission of the virus and designate ‘isolation’ facilities for the infected.

This article aims to address legal and practical issues employers may be confronted by in Hong Kong and how we can resolve similar problems in the UK based on the lessons learnt from Hong Kong.

Effect of Hong Kong’s mandatory quarantine arrangements on the workplace

On 5 February 2020, the Hong Kong Government passed a Regulation for Compulsory Quarantine Orders.  With effect from 8 February 2020, any person who visited Hubei Province or any part of Mainland China within 14 days of visiting Hong Kong, will be subjected to mandatory quarantine for 14 days.  This regardless of whether you are a local or a visitor from a foreign country.

The Labour Department has declared that if an employee is required to undergo quarantine, he or she will be issued a medical certificate to be placed “under medical surveillance” and employers are obliged to grant the employee sick leave in accordance with the Employment Ordinance.  As can be foreseen, the workforce has suffered immediate adverse effects due to the above disruptions.

Employers have both a statutory and common law duty to provide a safe place of work for their employees.  An employer’s legal liabilities associated with the Novel coronavirus in the workplace are as follows:

The employer’s legal obligations: (Cap. 509) The Occupational Safety and Health Ordinance (“OSHO”) and common law duty of care

Under the OSHO, employers need to maintain a healthy workplace and prioritize the safety of employees as far as it is reasonably practicable.  Should the situation necessitate, this includes possibly arranging for employees to telecommute from home and supplying all office staff with basic protection such as mask and sanitizers.

Wages, work rearrangements, and work refusals: (Cap. 57) The Employment Ordinance (“EO”)

Employers are under contractual duties to keep up with timely paying of wages as the employee continues to work under terms of contract throughout employment, even during periods when the employees are working from home.

Employees who fear for their personal safety may also request to work from home or take annual leave with the employer’s consent.  The employer indeed has the right to refuse such requests but should consider whether refusal is reasonable and be wary that they may assume liability for incidents which arise during the course of work.

Discrimination of infection: (Cap. 487) The Disability Discrimination Ordinance (“DDO”), (Cap. 527) The Family Status Discrimination Ordinance (“FSDO”)

The DDO renders unlawful the harassment and mistreatment of persons with ‘disabilities’, which includes infected individuals or individuals with suspected infections of the Novel coronavirus.

In most cases it is discriminatory for employers to dismiss employees on the sole basis of suspected infection or refusing to hire or interview candidates that come from the Wuhan province.  It is worthy to note that it is not discriminatory if the employer requires employees who have visited the Wuhan province or other infected areas to temporarily work from home if they are not already under quarantine.

The right to privacy: (Cap. 486) The Personal Data (Privacy) Ordinance (“PDPO”)

As per the PDPO, all businesses must keep employees’ medical histories on record as personal data and take reasonably practicable steps to protect said data.  As it is essential that the employers maintain a safe working space and protect employees from any potential aggrievances by only disclosing the names of infected employees with their consent.

In the wake of the Novel coronavirus, employers must thread a careful balance between privacy and safety by requiring employees suspected of infection to undergo medical tests to ensure the safety of other employees.

Compensation for injuries and death: (Cap. 282) The Employees’ Compensation Ordinance (“ECO”)

Under the ECO, the employer should have insurance in place to cover accidents, illness and death in the workplace.  As typical insurance bought in line with the ECO only tends to cover personal injury by accident in the course of employment.  Employers need to have vigorous safeguards to ensure that employees contracted the Novel Coronavirus by ‘accident’ rather than the employers’ negligence for it to be claimable.

On a further note, it is also worthwhile for employers to consider business interruption insurance and evacuation cover.

Business travel and work implications back in the UK

As can be foreseen, the workforce has suffered immediate adverse effects due to the above disruptions.  Employers have both a statutory and common law duty to provide a safe place of work for their employees.  Following the UK government’s recommendations, several employers have taken steps to avoid business travel to China, and employees based in China are encouraged to work from home to minimize the risk of infection.  It should be noted that government-issued guidelines are simply recommendations, and not the law.

The main gist of the guidelines for employers are as follows: –

• As per the current guidelines set out by the UK Government, employers should not send employees to Hubei Province for work related purposes and should avoid travel in general to China where possible.
• It is recommended that workers who have been in Hubei Province are to remain at home for 14 days and not to go to work, school, or any public areas to minimise the risk of mass infection. It is important to notify all employees who have visited the Hubei Province within the last 14 days that they required to notify the NHS via dialling 111.
• This also applies to employees who have been to any area of China and then proceeded to suffer flu-like symptoms. For the sake of other employees, the employer should require the employee to avoid the workplace as not to infect fellow colleagues.  Similarly, any employees which have arrived from a Country with known infected Coronavirus individuals that exhibit the relevant symptoms should also notify the NHS via dialling 111.
• Employers should also advise all staff to seek immediate medical assistance should they encounter any of the relevant symptoms and refrain from attending the workplace.
• Workers required by the employer to stay home will not be classified to be on ‘medical suspension’. They are still entitled to pay if this is at their employer’s request and the usual sick leave policies should apply, so long as they are fit and available for work.  In such circumstances, employees should also allow employees to work remotely from home where feasible especially if on paid leave.
• Workers who are required to stay at home should also attempt to obtain a ‘fit note’ from the local GP via phone consultation for future clarification. Although it is not a given, the GP will most likely issue a note in the interest of public safety to minimise the risk of infection.
• In sectors where working remotely is not plausible, employers should follow the contract and trade standards. As this is not always clear cut, it is always worth to seek legal counsel when unsure.
• Be vigilant to health warning and updates set out by the relevant UK government bodies

A workplace plan in response to the Novel Coronavirus

As of today, there is no actual law in Hong Kong set out to compel an employer to come up with a Novel Coronavirus response plan, OSHO still requires employers to ensure the safety and health of employees at work so far as it is reasonably feasible.  Similarly, there is no actual law in the UK set out to compel an employer to come up with a Novel Coronavirus response plan.  Yet the common law duty of care still requires employers to ensure the safety and health of employees at work so far as it is reasonably feasible.

Therefore, it is highly recommended for employers in both Hong Kong and the UK to have a workable plan in case of an outbreak emergency that can be adapted to fit any relevant epidemics with arise, not limited to the Novel Coronavirus.  Such a plan should consist of preventative measures before an outbreak, steps to mitigate damage during an outbreak, and how to tackle the aftermath.

Preventative measures before an outbreak

Hong Kong’s Centre for Health Protection issued Health Advice on Prevention of Severe Respiratory Disease associated with a Novel Infectious Agent in the Workplace which provides helpful guidelines to assist employers on the relevant steps to take to protect their staff, which are as follows:

– Regular disinfection of shared space, office equipment, doorknobs, lift buttons, etc;

– Proper maintenance of bathroom facilities and drains, including the provision of sanitizers such as antibacterial soaps;

– Ensuring and maintaining a good ventilation system; and

– Taking heed of the mandatory quarantine requirement issued by the Government and to keep a record of employees’ work and travel plans, especially if in relative proximity to infected areas.

From this we can see that in the UK, it is especially important for firms that have a large amount of frequent travelling employees or customers to adopt certain countermeasures.  As there are no fixed guidelines as of date in the UK, many Multinational Companies in the UK are adopting certain guidelines observed from other jurisdictions, such as the preventive measures set out by Hong Kong’s Centre for Health Protection as seen above.

Duration of the outbreak

Employers must ensure the safety of employees in the workplace during the Novel Coronavirus outbreak.  Under the common law duties, an employer must protect employees by taking steps to identify risks of employees of infection and prevent such risks.

It is important to have contingency plans should the situation worsen.  For companies with existing plans from SARS outbreak or Avion influenza, they should review existing polices in line with Coronavirus considerations.

For companies without existing plans, some of the strategies to do so have been set out above, most especially the identification of employees suspected of infection by recognizing virus symptoms.  Employers may take further initiative to protect employees by promoting mental health, such as hiring counsellors to deal with infection or death of colleagues.

Dealing with the aftermath of the outbreak

Employers must make sure the infected are fully recovered before allowing them to return to the workplace as not to risk infecting other employees.  The office must also be thoroughly disinfected to ensure it remains a safe place for employees to work in.

Aside from the duties to prevent co-workers from exposure to any personal with Coronavirus, employers should also balance the rights of infected individuals so as not to discriminate them as per anti-discriminatory legislation.  It is vital to be respectful and protect any employees from any potential discrimination in these circumstances.  Most especially to guard employers from potential harassment based on their nation of origin.

Conclusion

As there are only small number of confirmed cases in the UK, it is understandable why there is no official regulations yet.  However, taking Hong Kong as a case example, we can still learn valuable lessons on the importance of having a workplace plan to combat the rise of Novel Coronavirus with the relevant countermeasures mentioned here in.  Despite the fact that the Novel Coronavirus raises a plethora of problems for employers in any area of work regardless of jurisdiction, it is important to pave a path that balances compliance under relevant law while continuing smooth operation in the workplace with the underlying emphasis being placed on the health and safety of employees.

 

This article was written by Anne Tai, who is a trainee solicitor at Lester Dominic’s Hong Kong Office.