As the Severe Acute Respiratory Syndrome (atypical pneumonia) shows no signs of abating, the Labour Department (LD) has issued guidelines on labour-related matters arising from the quick spread of the illness, requesting the entire community to join hands to combat the disease and contain its spread.
The department has appealed to employers to adopt a considerate, compassionate and flexible attitude in dealing with the matter of sick leave and absence from work to maintain a healthy and safe workplace and to preserve harmonious employer-employee relations at this particularly difficult time.
The guidelines should be followed when dealing with questions arising from the new situation and used in addition to the Employment Ordinance (EO) and the Employees' Compensation Ordinance (ECO) which specifies the rights and obligations of employers and employees.
(A) Rights and obligations of employers and employees under the EO
(1) An employee who has contracted the disease:
* If an employee has contracted the disease, his employer should grant him sick leave. Under the EO, the employee will receive payment during the period of sick leave. This payment is equivalent to four-fifths of his normal wages and is payable if:
-the sick leave is supported by the appropriate medical certificate;
-the sick leave is not less than four consecutive days; and
-the employee has accumulated the number of paid sickness days taken.
* The employer should not terminate an employee's contract of employment during
his paid sick leave. Such termination is a prosecutable offence under the EO.
* Where a sick employee has not accumulated the sufficient number of paid sickness days to cover the sick leave, the employer, given these exceptional circumstances, should be compassionate and grant the employee paid sick leave all the same.
(2) An employee subject to an isolation order or requirement by the Director of Health to undergo a daily medical check-up for a period of time:
* As the Department of Health will issue sick leave certificate to such an employee, the same advice as stated in section (A)(1) above applies.
(3) An employee who has been asked by his employer to stay away from work because the employee has family members or relatives with the disease or in the case that the employer has closed the workplace for fear of the spread of the disease:
* This would amount to an act of "suspension of service by the employer" under the EO. The employer should pay the employee(s) wages and other benefits in accordance with the EO and the employment contract.
(B) Rights and obligations of employers and employees under the ECO
(1) An employee who has contracted the disease:
* Severe Acute Respiratory Syndrome is not one of the occupational diseases prescribed under the ECO for compensation. However, section 36 of the ECO provides that an employee shall have the right to recover compensation under the ordinance in respect of a disease which is not a prescribed occupational disease, if the disease is an accidental personal injury arising out of and in the course of employment.
* In handling non-prescribed occupational diseases, the LD will assess whether the employee concerned has accidentally contracted the disease out of and in the course of employment, having regard to the medical records, relevant information about the case and the provisions of the Ordinance. The LD will handle such cases in line with the same principle.
* On the face of it, if an employee has contracted Severe Acute Respiratory Syndrome out of and in the course of employment, he shall be covered by the ECO. In the vent of a dispute which cannot be resolved with the LD's assistance, the final decision rests with the court.
(C) Other important points to note:
* Under the Occupational Safety and Health Ordinance, the employer must, as far as is reasonably practicable, ensure the safety and health at work of all his employees. Where it is confirmed that any employee has contracted the disease in the workplace, the employer must cleanse and disinfect the work premises, and clean its ventilation system.
* We appeal to employers to provide face masks to their employees where appropriate. This will contribute to community-wide efforts to combat the disease.
(D) The Equal Opportunities Commission (EOC) advises employers and employees of the following:
* It is not unlawful for an employer to take action against an employee if the latter refuses to take precautions or comply with measures designed to protect public health.
* There is no unlawful discrimination under the Disability Discrimination Ordinance or the Family Status Discrimination Ordinance if the employer asks employees with family members/relatives infected with the disease or employees displaying such symptoms to stay at home and take paid leave.
* It is discriminatory if an employer dismisses or subjects to detriment an employee who has (or might have) the disease or who has a family member or associate who has (or might have) the disease.
These guidelines, together with "Handling Pneumonia Cases Discovered in Workplace" published by the Department of Health, are availble at employers' associations, trade unions, human resources managers' clubs and the nine industry-based Tripartite Committees. It is also available online at http://www.csb.gov.hk/english/letter/files/dhg_e.pdf. The Labour Department stands ready to assist individual employers and employees on the matter. For enquiries, please telephone the Labour Department hotline on 2717 1771.