In light of the 5^th wave of the COVID-19 pandemic in Hong Kong, the Government has recently gazetted the Employment (Amendment) Bill 2022 (the “Bill“), which seeks to amend the Employment Ordinance (Cap. 57, the “EO“) to prevent potential employment disputes which may arise when COVID-19 control measures are implemented.

One of the key objectives of the Bill is to clarify the definition of a statutory sickness day.  The amended definition of “sickness day” includes a day on which an employee is absent from work by reason of his/her compliance of a requirement under the Prevention and Control of Disease Ordinance (Cap. 599) which restricts his/her movement, namely a compulsory testing, isolation or quarantine order (a “Cap. 599 Order“; an employee subject to the Cap. 599 Orders is referred to as an “Affected Employee“).  Accordingly, section 33 of the EO is amended to provide that any Affected Employee is entitled to sickness allowance where the Affected Employee:

1. is able to present a hard copy or electronic document issued by a Government officer that shows the name of the Affected Employee, the type of the Cap. 599 Order imposed on the Affected Employee, and the commencement and expiry dates of the period for the Cap. 599 Order;
2. is absent from work for 4 or more consecutive days due to the Cap. 599 Order imposed on the Affected Employee; and
3. is not subject to the Cap. 599 Order due to his/her own serious and wilful misconduct.

Further, the proposed section 32KA of the EO provides that an Affected Employee’s absence from work due to his/her compliance with a Cap. 599 Order will not be a valid reason for dismissal or variation of the terms of his/her employment contract.  However, under the new section 32KB, an employee who fails to comply with a legitimate vaccination request by the employer (which must fulfil all the requirements set out in the proposed Schedule 12) will be regarded as being incapable of performing work for the purpose of his/her employment, which does constitute a valid reason for the employer to dismiss the employee or vary the terms of his/her employment contract.

The Bill, which can be accessed here, was tabled to the Legislative Council on 16 March 2022.  It is worth noting that there is a sunset clause which provides for the repeal of the above proposed amendments when the COVID-19 pandemic is under control and is no longer a matter of public health concern.