On 9 February 2020, the number of deaths due to the rapidly spreading coronavirus in Mainland China officially surpassed the figure seen during the 2002/2003 SARS epidemic.
Multinationals with local operations around the APAC region have been significantly affected. Businesses are considering what they can do to minimize any risk to health and safety and support staff through this challenging period where anxiety and uncertainty is rife, whilst at the same time complying with their employment obligations and maintaining business continuity. Putting in place detailed business and contingency plans and ensuring careful communications with staff to address key topics and concerns is key, as is keeping such plans and communications under frequent review given the fluidity of the current situation.
Naturally, health and safety is at the front and centre of these concerns. Employers generally have a duty to safeguard the safety and health of their employees, so far as is reasonably practicable. Some countries have extensive legislative frameworks in place, while others impose obligations at common law. Many (including Hong Kong) have specific requirements regarding the prevention of infectious diseases and the steps employers are required to take.
A detailed plan can help employers and managers to comply with their common law and statutory obligations, by evidencing the steps the company has taken to try to protect against an outbreak at work and what steps will be followed if there is an outbreak in order to minimise and mitigate against its impact. Such a plan should, for example, cover:
Numerous governments have implemented restrictions barring entry to those with recent travel history through Mainland China, including Singapore, Japan, Australia and the United States.
In response to pressure from public health workers, the Hong Kong Government has now followed suit and has begun a mandatory two-week quarantine for anyone arriving from Mainland China or who has stayed in Mainland China at any time in the 14 days before their arrival, effective midnight on 8 February 2020.
The measures apply to both visitors and Hong Kong residents. Visitors must isolate themselves in hotel rooms or Government-run centres. Hong Kong residents must stay inside their homes. If an employee is required to remain in quarantine, a public health officer will issue them with a quarantine order and a medical certificate.
Anyone caught violating the terms of the quarantine order without the permission of the public health officer is liable on conviction to a fine of HK$25,000 and to imprisonment for up to 6 months. Giving false or misleading information to a public health officer is also an offence and punishable to the same extent.
Employees can generally be required not to report for work if they are likely to pose a threat to the health and safety of other staff members. The scale of any threat needs to be assessed on a case-by-case basis.
During any quarantine period, the starting position is that employers would generally be expected to continue to pay the employee their ordinary wages and contractual benefits — provided they are otherwise ready and willing to work. However, this may depend on the location and whether the office/premises needs to be shut down completely.
If the employee has contracted the virus or is unfit to come to work, they would be expected to first utilize their sick leave entitlement (whether statutory or company enhanced).
Employers and employees are generally free to take periods of voluntary leave by consent, whether on a paid or unpaid basis. Unpaid leave arrangements have proved popular for some businesses during the recent Hong Kong Government protests, with many staff opting to take time off to spend time with families in returned for reduced working hours and reduced compensation. This is also an option that many businesses are considering in response to the outbreak of the coronavirus. Any agreement needs to be carefully documented to avoid later dispute.
During the SARS epidemic, the Hong Kong Labour Department issued a set of guidelines that encouraged employers to devise contingency plans and to allow staff in special risk categories, such as pregnant employees and employees with family members infected with the disease, to work from home or take leave. Although the guidelines were non-binding, we anticipate that the Labour Department and the Hong Kong Government would take a similar approach to the coronavirus — and it may well be that they issue similar guidelines in due course.
In the interim, the prudent approach is to adopt a flexible approach, particularly for those who are able to work from home and/or are in non-critical business positions. This approach is of course generally easier for larger business and those in the services sectors, while smaller business and those in e.g. F&B, retail and hospitality are likely to find it more difficult to do so.
Many countries have now suspended issuing new travel visas to Mainland residents. This may cause business disruption for any new hires/candidates who are based in the Mainland, and any existing visa or work permit applications that are currently on foot are likely to be delayed due to the backlog in processing.
For other business travellers, generally speaking any non-essential travel to and from the Mainland is generally being dissuaded by most employers in the region. Employers should ensure that their list of regular business travellers and contact details is accurate and up-to-date. Clear communication channels should be established (both during and outside office hours) as part of the business contingency plan.
Many employees are asking to work from other office locations overseas. Subject to any particular contractual arrangements, employers are not generally obliged to permit an employee to perform their duties from another location, either on a temporary or permanent basis. For many employers, such requests cause challenges around business continuity, ability of employees to perform their duties from different time zones, and/or perceptions of unfairness if certain categories of employees are permitted to do so while others are not. Longer term arrangements also carry the risk of unforeseen consequences such as tax liabilities (both on the individual employee and the company), visa issues and dual employment rights in both the original and new place of work.
Employers do need to be mindful that they do not breach any discrimination laws in their handling of staff during the outbreak. For example, in Hong Kong “disability’ is defined extremely widely and would likely include the coronavirus. In such cases, an employer would be under a duty not to subject the employee any less favourable treatment as a result of their condition.
However, a number of defences or exemptions are often available and typically these will include cases where a discriminatory action was taken that was reasonably necessary to protect public health. This would include: (i) complying with quarantine measures; and (ii) taking precautions against the spread of infectious disease.
As with any risk of discrimination (or perceived discrimination), it is key for employers to develop a contingency plan that applies equally to all staff regardless of any underlying protected characteristics and to ensure the policy is implemented consistently.
In countries with statutory workplace injury regimes, it may be possible for an employee to claim compensation if they have contracted the virus in the course of performing their employment duties. Such claims are usually settled through mandatory employees’ compensation insurance.
In Hong Kong, although the coronavirus is not currently classified as an “occupational disease” within the meaning of the legislation, this could change in the future — and in the meantime employees may be able to bring a claim within the context of personal injury.
Employers should speak with their insurance providers to check that any claims related to the coronavirus would be covered. Following the SARS epidemic, many insurers made significant pay-outs to insureds, and are generally now more cautious in the scope of insurance coverage that they provide in respect of communicable diseases and business interruption. Event organizers are particularly at risk when seeking to insure against the financial effects of the outbreak of disease.
Workplace mental health is an increasingly important topic for employers. The effects of contracting the virus and supporting family members who have done so is likely to create stress and anxiety. Employers should ensure they have in place an effective Employee Assistance Programme, and that all staff are reminded to know how to access it, as well as being notified as to whom internally they can share any concerns with.
Careful communication plans can address common FAQs and help to address some employee queries and concerns about both what the company is doing and what the expectations are of them during this period.
The DLA Piper Asia Pacific team will be hosting a webinar on this Friday (14 Feb) to share their insights on the wide-ranging issues currently impacting employers and how best to address challenges such as remote working, health and safety obligations, leave and pay requirements and data privacy considerations.
In the wake of recent disruptions to maintaining a state of ‘business as usual’ such as the Hong Kong protests, the coronavirus and measles outbreaks, and natural disasters, our team will give jurisdiction-specific legal updates on the issues and challenges such disruptions can cause for employers and how to navigate these obligations while trying to maintain business continuity.
Join the Flexible Working Arrangement Webinar and you will receive a link to log in on Friday. A recording of the webinar will also be available with the link after the event.