If an Employee is suspected to have contracted COVID-19, can the Employer require the Employee to get mandatory testing ?
Under Data Protection Principle I of the Personal Data (Privacy) Protection Ordinance, testing and results are information which are subject to protection and only necessary and adequate but not excessive personal data should be collected for the purpose of which it was collected.
Further, the general circumstances are that the requirement for mandatory testing for any disease or symptom suspected to have been suffered by the employee may be contrary to principles of equality and maybe a contravention of the Disability Discrimination Ordinance. But the Ordinance also provides a specific statutory exemption for “infectious disease” and for “protection of public health” for which COVID-19 will fall under.
To reduce the risk of any contravention of the Personal Data Ordinance and the Disability Discrimination Ordinance, the Employer should establish policy or measures and obtain written consent of the Employee for any such self-declaration of travel and health test information.
The Employer should also take precaution to establish that any such action would be proportionate to the threats or risks presented before taking any action.
Any policy or measures taken should minimize hardship for the Employee concerned, and should avoid singling out specific groups of persons (e.g. those who believe to have more social contacts with recent returnees from overseas).
The Employer should also ensure that any information obtained from the Employee should be protected from any unnecessary disclosure to the general public except the law or court order requires such disclosure.
Is an Employee who is placed under compulsory quarantine or isolation order entitled to receive paid sick leave ?
Under the Prevention and Control of Disease Regulations and Compulsory Quarantine of Certain Persons Arriving At Hong Kong Regulations, there are now 4 types of persons who may be subject to compulsory quarantine or isolation orders issued by health officials :
An Employee who has been placed under compulsory quarantine order will be issued with a medical certificate stating that the Employee is under “medical surveillance” which may entitle the Employee to take paid sick leave if the Employee is unfit for work or is suffering from illness.
The Labour Department has urged employers to grant employee under medical surveillance sick leave in accordance with the requirements under the Employment Ordinance.
However, the Employment Ordinance is unclear as to whether a symptomless employee or an employee who has not contracted with the disease falls within the definition of taking a “sickness day” as he or she is not “absent from work by reason of his being unfit on account of injury or sickness”.
Therefore, for employee who is under quarantine (e.g quarantine for arriving at HK from specified region) but is not absent from work by reason for being unfit for account of injury or sickness, that employee is not entitled to paid sick leave but may be asked to take unpaid leave in the event they are unable to discharge their job duties, or they are required to continue to discharge their job duties if they work remotely.
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