COVID-19: Guidance for employers in Hong Kong

What is the current level of restrictions in Hong Kong?

Social distancing measures

The current social distancing restrictions, which have been in place since 10 December 2020, prohibit public gatherings of more than two persons. Exemptions to these social distancing restrictions apply to workplace meetings, the performance of governmental functions and court proceedings. The number of people allowed in business meetings remains at 20. On 1 February 2021, the Hong Kong Government announced that the restrictions will be further extended until 17 February 2021 in light of the ongoing new infections through local transmissions.

A number of businesses have been temporarily closed under the current restrictions, including all of the city’s bars, pubs, clubs, massage parlours and other facilities such as gyms and cinemas. Details of which businesses and venues which are currently required to be closed are available here.

Since December 2020, civil servants have been working from home and the Government recommends that private sector employers allow for flexible work arrangements where possible. As a result, many private sector organisations currently have work-from-home or flexible working arrangements in place.

Testing requirements

New COVID-19 testing requirements have also been implemented since early February 2021. If an untraceable infection is found in a building or if the virus is detected in the building’s sewage sample, all residents are required to undergo testing. If two infections are detected in a workplace, all employees will be required to undergo mandatory testing.

The Government has also declared various parts of the city as restricted areas (referred to as “restriction testing declarations”) and issued compulsory testing notices which require all residents within the restricted area to remain in their premises and undergo mandatory COVID-19 testing. In addition, any person who has been present in the restricted area for more than two hours in the past 14 hours (including but not limited to visitors, residents and workers) must submit themselves for testing.

As such “restriction testing declarations” will be implemented without any prior notice, preventing individuals from leaving the restricted areas until test results have been ascertained, this is likely to impact employees who are unable to leave or access the area, preventing them from either attending work or leaving for home. It is therefore important for employers to put in place contingency plans so that employees are apprised of the actions they need to take if they find themselves in these situations.

Travel restrictions

Strict travel restrictions remain in place under which all non-Hong Kong residents are denied entry into Hong Kong. The exemptions to such restrictions include (but are not limited to) passengers travelling from Mainland China, Taiwan or Macau who have not been to any other overseas country in the past 14 days, those who hold a new entry visa, and the spouse and children of Hong Kong residents.

Under the current restrictions, any passengers who have spent more than two hours in Brazil, Ireland, the United Kingdom or South Africa (specified as extremely high-risk jurisdictions) in the 21 days prior to boarding a plane will not be permitted to enter Hong Kong. All other jurisdictions (except for Mainland China, Hong Kong, Macau and Taiwan) are specified as either medium to high risk or very high risk.

Inbound passengers via land or air who have visited any destination outside China in the 21 days prior to their arrival in Hong Kong will have to undergo a 21-day quarantine period in a designated quarantine hotel. Passengers who have only been in Mainland China, Taiwan or Macau in the 21-day period prior to arriving in Hong Kong are required to undergo a 14-day quarantine period, either at their home, a hotel that is not a designated quarantine hotel or other accommodation.

Passengers who have been to high-risk countries (including transiting) will also need to provide a negative nucleic acid test result conducted within 72 hours before the scheduled time of the aircraft’s departure. If their results are negative, they will be permitted to proceed to their designated hotel until they have completed their quarantine. If their results are positive, they will be transferred to hospital for isolation and treatment.

All passengers arriving into Hong Kong will be required to undergo mandatory testing prior to clearing immigration and baggage collection, and passengers will be required to wait for their test results. This include passengers from high-risk countries who were tested prior to boarding their flights. All individuals undergoing compulsory quarantine will be provided with an electronic wristband that permits the Government to detect if anyone leaves their accommodation during the quarantine period. Anyone violating their quarantine could face up to six months in prison and a fine of up to HK$25,000.

Are there any best practice guidelines for maintaining a safe workplace during the pandemic?

The Centre for Health Protection (CHP) has issued Health Advice on Prevention of COVID-19 in Workplace which contains practical measures to enhance personal and workplace hygiene and safety, such as maintaining good ventilation, disinfecting commonly-used equipment, providing hand soap in toilets, checking body temperature regularly, advising staff to stagger their meal times and to keep a 1.5 metre distance when having meals.

While the advice does not have the force of law, employers are encouraged to follow this to the extent possible. The Labour Department has, in fact, appealed to employers to help reduce the spread of the disease; for example, by providing surgical masks and other protective equipment as needed to frontline staff. Following these guidelines may help to demonstrate that employers have discharged their duty of care to provide a safe working environment under statute (in particular, the Occupational Safety and Health Ordinance (Cap. 509)) and under common law.

Can employers request or require information from an employee, customer or workplace visitor about potential or actual exposure to the virus?

Whether an employer can request employees and other workplace visitors to provide health information, sign a declaration on their travel history or other information in relation to their exposure to the virus may involve discrimination and data privacy considerations.

Discrimination

In light of the current pandemic it is generally justifiable for employers to collect health information or other data for protecting the health of their employees and visitors. However, employers should be cautious not to request excessive or unnecessary information based on factors which may not have a direct correlation with an increased infection risk. If the reason for requesting additional or more stringent information is due to the employee’s race or ethnicity, or the relationship between the employee and an infected relative (as opposed to the employee having recent close or physical contact with the relative), then this is unlikely to be reasonable. This may constitute race discrimination, or disability discrimination on the basis of the employee’s association to a person with a disability, and would be a potential breach of the employer’s implied duty of trust and confidence to the employee. The request for information must not be based on any protected characteristics under Hong Kong’s anti-discrimination legislation or place individuals with protected characteristics at a disadvantage.

Data privacy

The Privacy Commissioner for Personal Data has published guidelines for employers and employees in handling personal data during the pandemic. The general rules remain the same in that the measures taken to collect personal data should be necessary, appropriate and proportionate, and the least privacy-intrusive measures feasible should be adopted.

As employers have a duty to protect the health and safety of their employees and visitors, it is generally reasonable for employers to collect temperature measurements or limited information regarding medical symptoms of COVID-19 from its employees and visitors for this purpose. It is also justifiable for employers to ask for the travel history of employees or visitors who have returned from overseas, particularly from high-risk areas. All data collected should be purpose-specific and no more data than is needed for this purpose should be collected.

If the collection of personal data is not covered by an employer’s existing privacy notices, an updated privacy notice must be provided at the time of or before the data collection to inform employees and visitors of the data collected, the purposes of that collection and the classes of persons (e.g. public health authorities) to whom their data may be transferred. It is also a recommended practice to inform employees and visitors in the privacy notice how long the data will be retained by the employer. Once the purpose for the data collection has been fulfilled and, provided that it is no longer required, it should be permanently deleted, erased or confidentially disposed of.

If an employee or visitor is found to have been infected with COVID-19, the employer should notify other employees, visitors and the property management office, etc. without disclosing personally identifiable information of the infected individual, so that appropriate precautionary measures can be taken.

For workplaces that are open, what should employers do if an employee is absent or infected?

In the event that an employee who has attended work premises becomes infected with COVID-19, under guidelines issued by the CHP, employers are recommended to close the premises as soon as possible, advise other staff to work from home, provide details of the infected employee to the CHP to enable close contacts to be identified and to arrange for disinfection of the premises. Normally, close contacts of the confirmed case will be quarantined. The workplace should remain closed until further advice is received from the CHP.

If the infected employee is unfit for work and has provided the necessary medical certificates, he or she will be entitled to statutory sick leave.

What Government initiatives are currently in place to assist affected businesses?

The Government has set up an Anti-Epidemic Fund to provide relief measures and subsidies to support affected businesses, particularly those upon which the Government has imposed restrictions such as shorter opening hours and mandatory temporary closures.

Where can employers and employees access local advice?

Further relevant guidance from the Hong Kong Government is available here:

• Coronavirus website providing information on different aspects of the pandemic: https://www.coronavirus.gov.hk/eng/index.html
• Centre for Health Protection: https://chp.gov.hk
• Centre for Health Protection Hotline: +852-2125 1111 / +852-2125 1122 (9 am to 8 pm)
• Home Affairs Department Hotline: +852-2835 1473 (9 am to 6 pm, Monday to Friday)
•  HKSAR Government COVID-19 WhatsApp Helpline: +852-9617 1823