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.

Employers can terminate employees for refusal to be vaccinated in certain circumstances

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

• it must be in writing;
• the employees are required to produce to the employer (within 56 days from the request) proof of compliance with the relevant vaccination requirements and/or proof of administration of a certain number of doses of vaccine, as the case may be; and
• the employer has a reasonable belief that, if the employees contract COVID-19, they may expose others to the risk of infection in face-to-face contact.

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This amendment will have a sunset clause, to be repealed when the pandemic is under control and vaccination is no longer a matter of public health concern.⁴

Protection of employees undergoing quarantine from termination

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:

• he/she is placed under quarantine or isolation;⁵
• he/she is under a compulsory testing notice or order⁶; or
• he/she cannot leave a restricted premise.⁷

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.

According to the Government’s spokesman, the Bill will be introduced to the Legislative Council “as soon as possible.”

1. Section 32KB(1) of the Bill.
2. Section 32KB and Part 1 of Schedule 12 of the Bill.
3. Section 32K(b) of the Employment Ordinance.
4. Hong Kong government press release dated 25 February 2020. 
5. Sections 29(1) and (2) of Cap. 599A.
6. Sections 13(1) and 16(1) of Cap. 599J.
7. Section 19C(1) of Cap. 599J. 
8. Section 32KA of the Bill.
9. First Schedule as amended by the Bill.
10. Under the revised definition of “sickness day” pursuant to section 2(1) of the Bill.