Asia-Pacific employment law bulletin 2022
Developments in the light of COVID-19
For the latter part of 2021, Hong Kong began to see some relaxation of its COVID-19 restrictions. Businesses were mostly back to operating as normal, although Hong Kong’s borders remained largely closed as the city boasts some of the world’s strictest quarantine and travel rules. At the time of writing, however, Hong Kong is facing its fifth wave of infections. Lockdown restrictions are once again being enforced as Hong Kong maintains its “zero infection” strategy. As a result, many employers have reinitiated work from home and/or split team arrangements. The current restrictions are expected to remain in place for some time, as experts say that it could take two to three months to contain this new wave.
As the number of infections ramp up again, one of the key questions that employers in Hong Kong are grappling with is whether they can, or should, require mandatory vaccination in the workplace. The answer to this question will depend on, amongst other things, whether there is a legal / regulatory right for employers to mandate vaccination and whether there is a contractual right in its terms of employment with its employees to require mandatory vaccination. And if the answers to these questions are no, then an employer will need to consider whether mandating employees to be vaccinated constitutes ‘lawful and reasonable directions’ which an employer is entitled to give to its employees and which employees are required to comply with.
Outside of certain sectors (such as those working in schools or in the airport), employers generally do not have a statutory right to require employees to take the vaccine. However, employers have an obligation under the Occupational Safety and Health Ordinance and common law to take all reasonably practicable steps to ensure the safety and health at work of their employees. The requirement for employees to be vaccinated should be considered part of a business’ COVID-19 risk assessment.
At the moment, the Hong Kong government requires all of its own employees to either have received the first dose of vaccine or be tested once in every three days at their own time and expense, unless they are certified as medically unfit for vaccination. The Hong Kong Monetary Authority, the Securities and Futures Commission and other regulators also issued a circular in November 2021 urging authorised institutions and regulated entities to adopt the same approach. However, these circulars do not actually mandate vaccination.
In terms of the second question, it is generally unlikely for employers to have specific language in its existing employment terms which require employees to be vaccinated.
The key question is therefore whether requiring employees to be vaccinated constitutes “lawful and reasonable directions” – if they do, employees are generally required to comply. It is generally lawful for an employer to require employees to be vaccinated before returning to the office. The reasonableness of the direction, however, is a more complex question which will depend on the relevant circumstances, including whether it is possible for employees to work from home and whether exceptions are made for those who cannot be vaccinated for medical reasons.
Ultimately, in deciding whether to require mandatory vaccination of its workforce, employers will need to balance between the health and safety of its workforce, business continuity risks, government guidance, employment and other legal risks and importantly, the civil liberties of the employees.
It is expected that as and when the fifth wave eases up again, many employers will be keen to encourage employees to work from the office again (or at least, to go back to hybrid working). Employers are advised to keep a close eye on the developments and to review their working arrangements as the situation evolves.
Changes to statutory holidays
In March 2021, the Government gazetted the Employment (Amendment) Bill 2021 which includes proposed amendments to the Employment Ordinance so that, from 2022 to 2030, five statutory holidays will be progressively added. Currently, there are 12 statutory holidays. By 2030, the five additional general holidays will also be statutory holidays. These five additional statutory holidays are:
- the Birthday of the Buddha (starting from 1 January 2022);
- the first weekday after Christmas Day (starting from 1 January 2024);
- Easter Monday (starting from 1 January 2026);
- Good Friday (starting from 1 January 2028); and
- the day following Good Friday (starting from 1 January 2030).
Proposed cancellation of the MPF offsetting mechanisms
In May 2021, the Hong Kong government announced that a bill will be tabled to cancel the Mandatory Provident Fund (“MPF”) offsetting mechanism. The bill will effectively abolish the mechanism that permits employers to offset employees’ severance payments or long-service payments with contributions made by an employer to an employee’s MPF. The offsetting mechanism will be scrapped as early as 2025. It is expected that the government will provide subsidies for a period of time to companies to manage some of the extra costs.