僱傭法

法律下的新冠病毒

在新冠疫情⼤流⾏的趨勢下,不少僱主會在公司內部實施防疫措施以減少新冠病毒的傳播⾵險,如不允許員⼯在⼯作場所摘下⼝罩、⿎勵接種疫苗等。

值得注意的是,根據《僱傭條例》(第57章),僱員未能遵守僱主正當合理的防疫措施,可被視為合法即時解僱該僱員的有效理由。其他司法管轄區(如英國和澳洲)的法院已就類似問題作出裁決,並裁定僱主此類內部政策是合法的,因此認爲有關解僱是合理解僱。

此外,為修訂《僱傭條例》(第57章),⾹港政府於2022年2⽉25⽇將《2022年僱傭(修訂)條例草案》刊登於憲報。其中⼀項主要的擬議修訂規定,如果僱員沒有遵守僱主「合理的疫苗接種要求」,僱主便可以以此作有效理由解僱該僱員。

因此,無論是為了僱員的個⼈健康抑或是為了避免任何僱傭關係的糾紛,我⾏都建議僱員遵守僱主合理的內部防疫措施。

另⼀⽅⾯,為保護僱員權利,擬作出的其他修訂還包括,當僱員因遵守隔離政策⽽導致缺勤時,該⽇將被視為病假。因此,若僱主因僱員為遵守隔離政策導致缺勤⽽解僱此僱員,則該等解僱將被視為不合理解僱。

EMPLOYMENT LAW

CORONAVIRUS UNDER THE LAW

Against the backdrop of the Covid-19 pandemic, it is not uncommon for an employer to implement internal policies to reduce the risk of transmission of Covid-19, including disallowing the removal of facemasks at the workplace, encouraging employees to get vaccinated etc.

It is worth noting that an employee’s failure to comply with his/her employer’s such legitimate virus-combating measures may be regarded as a valid reason to summarily dismiss that employee lawfully under the Employment Ordinance (Cap. 57). Courts in other jurisdictions (e.g. UK and
Australia) have already adjudicated similar issues ruling that the employers’ internal policies were legitimate and hence the relevant dismissal was reasonable.

Furthermore, the Hong Kong Government has recently gazetted the Employment (Amendment) Bill 2022 on 25th February 2022 to amend the Employment Ordinance (Cap. 57). One of the major proposed amendments provides that if an employee fails to comply with the employer’s “legitimate vaccination request”, such non-compliance may constitute a valid reason for the employer to dismiss that employee.

Therefore, whether for the purposes of the employee’s personal health or for the avoidance of any employment disputes, an employee is suggested to follow the employer’s legitimate internal anti-pandemic policies.

On the contrary, in order to protect the employees, the amendments also include that an employee’s absence from work to comply with the movement restriction order will be deemed as sickness day. Also, laying off an employee will be considered as unreasonable dismissal if the employee’s absence is caused by such movement restriction order.

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