On 25 February 2022, the Hong Kong government published in the gazette the Employment (Amendment) Bill 2022 (the Bill). The Bill seeks to make certain amendments to the Employment Ordinance (Cap. 59) to address unique issues arising out of the COVID-19 pandemic.
If an employee fails to comply with a “legitimate vaccination request” made by his/her employer, he/she will be considered as being incapable of performing work for the purpose of his/her employment.1
A “legitimate vaccination request” must meet the following requirements:2
A vaccination request cannot be made to certain exempted persons, including those with medical exemption certificates, and employees who are pregnant or breastfeeding, etc.
Failure to comply with a “legitimate vaccination request” will constitute a “valid reason” for the employer to dismiss an employee or vary the terms of the contract of employment.3
This amendment will have a sunset clause, to be repealed when the pandemic is under control and vaccination is no longer a matter of public health concern.4
An employee may be absent from work due to legal restrictions on his/her movement pursuant to the Prevention and Control of Disease Ordinance, Cap. 599 and the various subsidiary legislations thereunder effective from time to time, such as where:
In those circumstances, an employee’s absence from work will not constitute a valid reason for dismissal or variation of the terms of the contract of employment.8 Furthermore, such absence will not break the continuity of his/her employment for the purpose of determining a “continuous contract”.9
Finally, the period of absence in compliance with anti-epidemic laws and regulations will constitute statutory sickness days,10 and eligible employees may be entitled to apply for statutory sickness allowance provided certain conditions are satisfied. Dismissal of an employee who is absent from work due to his/her compliance with anti-epidemic laws and regulations will be considered as unreasonable dismissal.
heading