Question 1

Do employers have a right to ask their employees to get tested for Covid-19?

Accepted Answer

Unless an employee is subject to compulsory testing, such as under a government ambush lockdown, or is employed in a sector which is subject to compulsory testing such as catering services, there is no clear and confirmed basis for employers to lawfully require employees to undergo Covid-19 testing.

Question 2

Can employers ask the employees to declare if they have been in contact with anyone who has tested positive for Covid-19?

Accepted Answer

With a view to providing a safe work environment to all employees and in consonance with the employee’s corresponding duties, it will be reasonable for employers to direct employees to declare if they know they have been in contact with anyone who has tested positive for Covid-19 or if they have been at places where Covid-19 cases have been detected. Human Resources personnel and persons in managerial positions should maintain regular communication with employees to encourage transparency.

Question 3

What can employers do if an employee refuses to undergo a regular Covid-19 test?

Accepted Answer

If an employee refuses to comply with a lawful and reasonable direction (unlike a mere request) from the employer, it may entitle the employer to take disciplinary action against the employee. In this regard, employers should review and follow their disciplinary policies. It is recommended that any disciplinary action should be preceded by an investigation or thorough examination of the facts, to minimise the risk of arbitrary actions. Employers should weigh the reasons for refusal against the proposed sanctions, as well as consider other measures that potentially could be used, such as requiring the employee to take annual leave, unpaid leave, or requiring them to work from home.

Question 4

Can employers direct their employees to work from home or from an alternative location?

Accepted Answer

If employees refuse to undergo Covid-19 testing, subject to contractual terms, requiring the employees to work from home or from an alternative office may be another alternative an employer could consider. Prior to making any such direction, it is advisable for employers to review the terms of the employment contract and the applicable policies to see whether the employer can unilaterally make such directions. While such precautions seem eminently sensible and reasonable, there remains a risk that without applicable contractual terms, employees potentially could consider themselves as constructively dismissed.

Question 5

Can employers ask their employees to provide Covid-19 test reports?

Accepted Answer

Employers do not have a statutory right per se to ask for Covid-19 test reports. However, in compliance with the duties under the OSHO, it may be reasonable for employers to require employees to produce Covid-19 test reports. Should the employer seek to collect the Covid-19 test reports, it must be done in strict compliance with the Personal Data (Privacy) Ordinance (“PDPO“). Care should be taken to obtain only such information that is necessary and appropriate for the purpose of controlling the spread of diseases and providing a safe working environment. Any data or test report or other information should be collected, processed, and stored in a transparent manner. Care should be taken to store information only so long as it is absolutely necessary and not to use for a purpose other than for which it was obtained. Employers are responsible to ensure that the no employee is discriminated against on the basis of the medical reports.

Question 6

Could employers be required to pay for the COVID-19 testing of employees?

Accepted Answer

Generally, there is an implied duty upon employers to indemnify employees in relation to expenses reasonably incurred by their employees in carrying out their duties. Accordingly, if an employer directs its employees to undergo Covid-19 testing, they may find themselves liable to reimburse the expenses. Accordingly, employers may decide to make requests or directions for employees to undergo specific types of testing. Currently, a deep throat saliva test is available free of charge, but the test result is notified within 1 to 3 days of the test. Alternatively, community centre testing is available at a cost to the general public unless the individual is subject to compulsory testing by the government. Employers may also choose to arrange for the employees to undertake testing at private clinics that are recognised by the Department of Health.

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雇主是否可以要求雇员在香港接受COVID-19检测？

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