On 27 April 2009, the government of Hong Kong amended the Prevention and Control of Disease Ordinance to include Swine Influenza as one of the notifiable diseases under the Ordinance. As such, medical practitioners are under a statutory obligation to notify the Director of Health of any suspected or confirmed case of Swine Influenza.
The outbreak of Swine Influenza, has raised serious health and safety issues for employers and employees. Whilst many Hong Kong employers are familiar with such issues (having had to face the SARS outbreak in 2003), it is worth reminding ourselves of the legal obligations should Swine Influenza reach Hong Kong.
1. Employers' obligations with respect to the health and safety of employees
(a) General obligations
Under the Occupational Safety and Health Ordinance, an employer must, so far as reasonably practicable, ensure the safety and health at work of all employees.
Note: Occupiers are also required to ensure the safety and health of employees at a workplace where the employer does not control the workplace.
Circumstances where an employer fails to ensure the safety and health of employees at work include (but are not limited to) the following:
(b) Preventative measures to maintain a safe working environment for employees
The various preventative measures which have been recommended by the Department of Health for the prevention of Swine Influenza are as follows:
In 2003 the Department of Health issued specific guidance in relation to workplaces. These are still relevant. As such we set them out as follows:
(c) Provision of information to ensure health and safety of employees
Employers should provide information to employees regarding:
Other than employees in the first group (who of course should not attend for work and should seek urgent medical attention if they have not already done so), employers may wish (but are not necessarily obliged) to consider allowing employees in the other at-risk categories to work from home or take leave of absence of some form (sick leave, compassionate leave).
2. Critical departments
Employers may wish to consider dividing critical employees and operations between a number of premises (to the extent possible) to reduce the risk of a mass infection or mass quarantine shutting down such operations.
3. Reporting obligations
Employers and employees having knowledge of a case where a person is infected with Swine Influenza and not otherwise under the care of a medical practitioner must notify either:
Save for the specific obligation imposed on medical practitioners under the Prevention and Control of Disease Ordiance, there is no obligation to report suspected (as opposed to confirmed) cases of Swine Influenza. However, employees should be encouraged to notify their employers and seek medical attention if they have respiratory symptoms and/or are otherwise in an at-risk category. We also suggest that consent is obtained from such individuals for the disclosure of their personal details to the appropriate authorities and other personnel (if necessary) for the purpose of identifying other employees who may be at risk of contracting Swine Influenza through contact with fellow employees.
4. Potential liability under employee compensation legislation for an employee who has contracted Swine Influenza in the course of employment
Unlike SARS and Avian Influenza A, Swine Influenza is not yet an occupational disease prescribed under the Employees Compensation Ordinance ("ECO") for payment of compensation. However, section 36 of the ECO provides that an employee shall have the right to recover compensation under the ECO in respect of a disease which is not a prescribed occupational disease if contraction of the disease amounts to a personal injury by accident arising out of and in the course of employment.
In handling occupational diseases, the Labour Department will assess whether the employee concerned has accidentally contracted the disease out of and in the course of employment, having regard to the medical records, relevant information of the case and the provisions of the ECO.
Having regard to the above, an employee who has contracted Swine Influenza out of and in the course of employment may be entitled to compensation under the ECO.
We anticipate that health and safety issues relating to Swine Influenza may be at the forefront of employers' minds over the next few weeks and we will continue to keep you informed of any new developments and/or guidelines issued by the government.
In view of the potential outbreak of Swine Influenza, employers may wish, in addition to the various health and safety measures outlined above, to consider ways in which they may safeguard critical employees and operations such as by re-locating some of these employees and operations to other locations.
In this respect, we distributed in 2006 a publication headed "Pandemics and the Workplace - A Regional Analysis" detailing how employers should handle the outbreak of a pandemic. This publication is available at https://www.mayerbrown.com/london/article.asp?id=6554&nid=369
For further information on employers' obligations in relation to swine flu or pandemics generally, please speak to:
Duncan Abate (
Hong Tran ( )
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