If a Covid-19 case is traced to one of our employees, does our organization have any liability or other risks?
Depending on whether the COVID-19 infection is acquired from the workplace, an employee may have a claim against the employer. However, the question of liability depends on the facts and evidence of each case. If you have a specific concern about your organization’s potential liability towards an employee and would like legal advice, please contact us at [email protected] and we will locate legal assistance for you.
Employees’ Compensation Ordinance (Cap. 282) (the “ECO”)
COVID-19 is not currently classified as an occupational disease under the ECO. Yet, the ECO stipulates that an employee contracting a disease not prescribed as an occupational disease may still claim compensation from the employer under the ECO if it is an injury or death by accident arising out of and in the course of employment, and the employer may be liable to pay compensation. However, whether an employer is liable depends on whether it can be proven that the employee has in fact contracted the virus during the course of employment. This is not easily done, especially in light of the delay in obtaining a test result.
Occupational Safety and Health Ordinance (Cap. 509) (the “OSHO”)
Hong Kong has not yet enacted any employment specific laws with respect to COVID-19. Under the OSHO, an employer has a duty to take reasonable care of all employees’ safety and health and to provide and maintain the workplace in a safe condition without risks to health. This duty would include implementing the relevant guidelines issued by the HKSAR Government, which include:
- Health Advice on Prevention of COVID-19 in Workplace (Interim);
- Guidelines for Centre-based Services for the Prevention of COVID-19 (Interim); and
- The guidelines published by the Food and Environmental Hygiene Department referred to in the answers to question 4 below.
The breach of the duty of care provision under OSHO can attract criminal liability and if convicted, the employer can be fined up to HKD200,000. Intentional, knowing or reckless failure to comply with this duty can be punished by imprisonment of up to six months. It should be noted that to be liable, it must be proven that the virus was contracted as a result of the employer’s failure to provide a safe working environment. Proving this may be difficult for the same reasons mentioned above.
Potential common law (case law) liability
In addition to the above, an employee can also make a claim against an employer under common law by bringing proceedings in the court. Under common law, employers have a non-delegable duty to take reasonable care of all employees’ safety and health and to provide a safe place of work. If it is proven that an employee has contracted the virus as a result of the breach of duty of care by the employer, the employer may be liable to pay damages. The standard required is one of reasonableness – the court will look at all the circumstances, including the size and financial resources of the employer, the degree of risks involved and whether the employer has implemented the relevant guidelines issued by the HKSAR Government. Again, the employee must prove that the failure of the employer to maintain a safe working environment caused the COVID-19 infection, which makes this type of claim difficult to establish.
Other risks in connection with an employee’s COVID-19 infection
In addition to the above, you might wish to take note of:
- Discrimination against employees – An employer should not treat any employee who has contracted the virus less favorably than it would treat someone who is not suffering from it. This means that the employer should continue to pay the infected employee, and should not dismiss the employee solely because they had contracted (or has been suspected to have contracted) Covid-19. Mandatory testing for a suspected infection of COVID-19 would not constitute discrimination.
- Employees refusing to attend work – Although generally speaking an employee cannot refuse to attend work just because they are fearful of contracting the virus, they would be lawfully entitled to do so if they feel their workplace is dangerous or hazardous to their health – i.e. an employee has been confirmed as having Covid-19 and the workplace has not been evacuated and professionally cleaned.