A Brief Recap of Some of the Legislative HR Changes in Hong Kong over the past 12 Months
Potential Termination of Unvaccinated Staff
On 8 February 2022 the Government announced a series of anti-epidemic measures which included banning unvaccinated persons from entering an additional six types of premises, namely shopping malls, department stores, religious venues, supermarkets, wet markets and hair salons.
It was further announced that the Chief Executive will push the Executive Council to amend the Employment Ordinance to allow employers to dismiss unvaccinated employees who are unable to go to work because of this vaccine pass scheme and that such dismissal would not be considered an “unreasonable dismissal” under the Employment Ordinance.
On a more positive note for Employees another proposed amendment is to prevent Employers from dismissing staff affected by mandatory lockdowns of the estates they live in or those placed under compulsory home quarantine. These staff to be eligible for sick leave and their dismissal will be considered an “unreasonable dismissal” with legal consequences.
The proposed amendments may have little impact on employees able to work from home with the assistance of technology however those who work in one of the regulated venues or whose work requires face to face interactions will be more noticeably affected.
These are only proposed amendments and a draft bill has yet to be drafted or debated in the Legislative Council. Substantial opposition is to be expected.
Related Case
In a related case, an Employment Tribunal has found that an employee could be dismissed by a nursing home due to her refusal to be vaccinated. The Tribunal concluded that the specific circumstances of the home, there had been a COVID outbreak and the risk to the residents was high, meant the nursing homes mandatory vaccination policy was a reasonable management instruction and did not contravene an employee’s right to privacy. The homes public liability insurers had also threatened to remove cover if unvaccinated staff were allowed to work.
The tribunal held that the reason for refusal, a concern about the safety of the vaccine was not good enough reason in the circumstances.
The specific circumstances of this dismissal mean it will be of limited wider application and an office-based employer would not have the same justifications. As the first case on the topic, it is however of interest in showing the considerations a Tribunal will take into account when assessing a mandatory vaccination policy.
Increase in HK Maternity Leave
On 11 December 2020, female employees in Hong Kong received the glad tidings of the extension of paid Maternity Leave from 10 weeks to 14 weeks. The HKSAR Government has committed to subsidize employers for the additional 4 weeks with a ceiling at HKD80,000 per employee. Employers are required to pay the additional four weeks on the normal pay day and afterward may apply to the Government for reimbursement.
The Government has now subsequently provided information on how to apply. Applications can be made online through the Reimbursement Easy Portal at https://www.rmlps.gov.hk/home, or by email (enquiry@rmlps.hk), fax (+852 2178 0328) or post to the Scheme’s service centre.
Discrimination Against Breastfeeding Women
On 19 June 2021, the Sex Discrimination Ordinance was enacted to protect against breastfeeding discrimination and harassment of a woman in the workplace. The Ordinance applies to the act of breastfeeding a child or expressing milk to feed a child, even if the child may not be her biological child. The Ordinance outlines the unlawful behaviors such as treating a breastfeeding woman less favorably than another person (i.e. a woman not breastfeeding or a man) because the woman is breastfeeding; or applying indirect discrimination or victimization of a breastfeeding woman. Employers should evaluate current practices and update their employee handbook as soon as possible. See Equality for Breastfeeding Women Guidance for the Employment and Related Sectors for more information.
Increase in HK Statutory Holidays to be on a par with General Holidays
On 16 July 2021, the HKSAR Government published the Employment (Amendment Ordinance) 2021 which seeks to progressively increase the number of Statutory holidays from 12 days to 17 days to be on a par with the number of General Holidays (excluding Sundays). The 5 days will be added in sequence every two years during the period 2022 to 2030 starting with the Buddha’s birthday in 2022 followed by the first weekday after Christmas Day, Easter Monday, Good Friday and the day following Good Friday.
Cancellation of MPF Offsetting Against Severance/Long Service Pay
For many years, employers have been legally allowed to reduce the Severance (“SP”) or Long Service Pay (“LSP”) to which an employee is otherwise entitled by the value of the mandatory MPF contributions paid by the employer in respect of the employee. This offset has long been contested by Employee Groups and although broad agreement about a gradual removal of this offsetting arrangement was reached in 2018 the topic has become controversial again with the impact of pandemic.
Under proposals to the Legislative Council in late 2021 with effect from a date to be decided (expected to be in 2025) it will not be possible for an Employer to use mandatory MPF contributions to offset LSP or SP earned after that date although those earned before the effective date can continue be used in this way. The Government will however partially subsidise on a sliding scale the additional costs to the Employer of removing this offset. As always much will depend on the detail in the final scheme.
All material contained in this document is provided for general information only and shall not be construed as legal advice or opinion to any person or specific case.
