After the government introduced the "red-yellow code" measures, people with "yellow code" can go to work as usual, but in Hong Kong, a city where "my appeal is to return to work", if employers do not allow employees with "yellow code" to enter the office, does it belong to discriminate?
The EOC explained when responding to the enquiry of "Hong Kong 01" that if an employer simply thinks or speculates that an employee with a "yellow code" may be infected with the virus and gives poor treatment without reasonable reasons, such as forcing an employee to suspend work or take a vacation, it may not be considered a crime. A "reasonable need" for the protection of public health may contravene the Disability Discrimination Ordinance.
The Labour Department’s reply also stated that employers should communicate frankly with their employees if they adopt additional anti-epidemic regulations according to their own needs. Employers cannot unilaterally use employees’ paid annual leave to offset the days they are not allowed to work, otherwise they will be in violation of the Employment Ordinance , subject to criminal prosecution.
▼On August 8, the government announced the "3+4" quarantine arrangements for hotels for isolation▼
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Employers need to assess whether conduct is "reasonably necessary"
The EOC stated that the assessment of whether a case constitutes a breach of the Discrimination Ordinance depends on a number of factors, which depend on individual cases and actual circumstances. When assessing whether certain conduct is "reasonably necessary", employers should take into account The government has been monitoring the latest developments of the outbreak and has implemented quarantine and social contact restrictions in a timely manner.
Speculation of "yellow code" employees or orders to suspend work or disability discrimination
The EOC said that under the "red-yellow code" measures, if an employer simply thinks or speculates that an employee with a "yellow code" may contract the virus, and lacks reasonable grounds to give poor treatment, such as forcing employees to suspend work or take vacations , it may not be "reasonably necessary" for the protection of public health, and therefore may contravene the Disability Discrimination Ordinance.
The EOC urges those who have doubts to negotiate with employees and consider returning the company with WFH
The EOC said that if an employer dismisses an employee based on his illness, it may violate the law, whether the employee is infected or the employer mistakenly assumes that the employee is infected. It is suggested that if the employer has doubts about the "yellow code" employee returning to the company to work, they can Consult with employees to make other appropriate arrangements, such as having employees work from home, etc.
Labour Department: Employers should communicate frankly with employees if they impose additional epidemic prevention requirements
The Labour Department stated that, regardless of whether the employee's workplace is a place where the "vaccine pass" is voluntarily checked and other places that require special protection, employers should allow employees with a "yellow code" to go to work after completing the hotel quarantine. During the "yellow code" Persons must comply with epidemic prevention measures such as wearing masks and eating alone. If employers need to adopt additional epidemic prevention requirements for individual premises, they should communicate frankly with their employees and negotiate mutually agreed arrangements.
If the “yellow code” employees cannot be arranged to go to work after completing the hotel quarantine, the employer should pay the employees the remuneration for working during the period.
▼On August 9th, the first day of the implementation of the yellow and red code for safe travel will have little impact on restaurants▼
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Unilateral compulsory use of annual leave to offset non-arranged working days violates the Employment Ordinance
The Labour Department emphasizes that the Employment Ordinance has clear provisions on the payment of paid annual leave by employers, and employers cannot unilaterally use paid annual leave for employees to offset the days they are not allowed to work.
Employers who violate the above-mentioned provisions on paid annual leave commit an offence and are liable to criminal prosecution.
Employers can arrange "yellow code" foreign domestic helpers to stay in hotels to complete the remaining monitoring as needed
As for the situation of "yellow code" foreign domestic helpers, the EOC said that it depends on the actual situation to determine whether the Disability Discrimination Ordinance has been violated. Hotel residence, etc.
The Labour Department also added that, in view of the unique work pattern of FDHs working and staying at the employer’s residence, and taking into account individual family circumstances, the Commissioner for Labour has approved in principle that employers may arrange for FDHs to complete four-year work in licensed hotels or guesthouses that are not segregated hotels. Day medical surveillance, and self-observation for the next three days, do not need to apply to the Labour Department.
COVID-19 is a "disability"
COVID-19 falls under the “Disability” under the Disability Discrimination Ordinance, because one of the definitions of “disability” stipulated in the Ordinance refers to the existence of an organism that causes or can cause disease in the body. Disability does not only refer to existing disability, but also to Include "pre-existing", "possible future" or "perceived disabilities".
However, it is not unlawful if the disability in question is a communicable disease under the Prevention and Control of Disease Ordinance, including COVID-19, and the discriminatory conduct is "reasonably necessary" to protect public health.
The government announced that the quarantine arrangement for arrivals from overseas and Taiwan will be changed from 7-day hotel quarantine to 3-day hotel quarantine and 4-day home medical monitoring.
Red-yellow code | 13,000 people left the quarantine hotel early in two days Zhang Zhujun: The principle is first-in-first-out foreign domestic helpers who arrive in Hong Kong from Friday "3+4" quarantine four-day medical surveillance can work at the employer's home Red and yellow code | 4,000 people are allowed The "epidemic surveillance" is released early. The immigration department prohibits people who change their codes from visiting two places. The red and yellow codes are not listed in the government announcement. Persons with code and yellow code are not allowed to visit prison