Over the past week, the Hong Kong government has imposed two neighbourhood lockdowns in locations with COVID-19 cases, where residents were banned from entering into and exiting from the neighbourhood until they were all tested for COVID-19. The most recent lockdown was imposed without notice, and the government has warned that future lockdowns will be done in an “ambush style” to ensure that residents do not flee in advance.
The government has also urged employers to be understanding of their employees, and refrain from deducting their wages or days off if they are unable to attend work due to lockdown.
Here are some points that employers should be mindful of when their employees are unable to attend work due to any government-imposed lockdown:
- Is work from home/flexible work possible? If the employees indicate that they are willing to work from home and the employer agrees, the period of lockdown should be treated as ordinary working days (i.e. with no deduction from wages/days off).
- Deduction from wages (i.e. unpaid leave)? Technically, absence from work (including absence from work due to lockdown) is a permissible ground for deduction from wages pursuant to section 32 of the Employment Ordinance (the “EO”). Any deduction made on this ground must be proportional to the period of absence. That being said, the government has encouraged employers to be considerate and make flexible arrangements for employees to work from home, if possible. If work from home is not feasible, the government has encouraged employers not to deduct employees’ wages.
- Deduction from (paid) annual leave? In relation to statutory annual leave (i.e. annual leave granted pursuant to the EO), the EO allows employers to appoint the dates on which employees must take statutory annual leave; however, 14 days’ advance notice is required unless a shorter period has been mutually agreed. Therefore, employee’s consent is likely required if the employer would like to require an affected employee to take his/her statutory annual leave during the lockdown period (because, given the “ambush” nature of lockdown, it is unlikely that the employer will be able to give 14 days’ advance notice).
- In relation to contractual annual leave (i.e. annual leave granted in addition to statutory annual leave), an employer may direct an employee to take such leave during the lockdown period based on its existing policy.
- What if an employee was tested positive during lockdown? If an affected employee is tested positive with COVID-19 during lockdown, the employee could take sick leave. The employee may also be eligible to claim sickness allowance under the EO provided that he/she meets the statutory requirements (i.e. the sick leave is supported by an appropriate medical certificate, the sickness taken is less than 4 consecutive days, and the employee has accumulated sufficient number of paid sickness days pursuant to the EO).