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Legal Update

Swine Influenza - Employers' Obligations And Liability

30 April 2009
Mayer Brown JSM Legal Update


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.

Full Update

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:

  • a failure to provide information, instruction, training and supervision as may be necessary to ensure the safety and health of employees at work,
  • a failure to maintain the workplace in a condition that is safe and without risks to health where the workplace is under the employer's control,
  • a failure to provide or maintain a working environment for employees that is safe and without risks to health.

(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:

  • keep hands clean and wash hands properly. Alcohol-based hand rub is also effective when hands are not visibly soiled,
  • avoid touching eyes, nose or mouth,
  • wash hands with liquid soap promptly if they are contaminated by respiratory tract secretions, e.g. after sneezing or coughing,
  • cover nose and mouth while sneezing or coughing and dispose of nasal and mouth discharge properly,
  • always wrap nasal and mouth discharges with tissue paper, and dispose of the tissue paper properly in a lidded rubbish bin,
  • wear a surgical mask when symptoms of respiratory tract infection or fever develop. Seek medical advice promptly,
  • refrain from attending work or school if you develop symptoms of influenza.

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:

  • Ensure air-conditioning systems are well maintained. Clean air filters regularly.
  • Office windows should be opened from time to time to allow for better ventilation.
  • Maintain a clean and hygienic working environment. At least once a day, clean and disinfect commonly-used equipment, including telephones, using a diluted solution of household bleach (1 part bleach: 99 parts water). Rewipe with a towel soaked in clean water.
  • If cleaning vomit, use a diluted solution of household bleach (1 part bleach: 49 parts water). Rinse the area with clean water and wipe dry.
  • Keep carpets, doors and windows clean.
  • Ensure toilet facilities are properly maintained.
  • Liquid soap, disposable towels and a hand dryer should be provided in toilets.
  • If a staff member has a fever or cough, remind him/her to stay at home and consult a doctor immediately.

(c) Provision of information to ensure health and safety of employees

Employers should provide information to employees regarding:

  • the symptoms of Swine Influenza (details can be obtained from the Department of Health),
  • personal preventative measures (eg. with respect to the use of masks and personal hygiene),
  • procedures with respect to notification and reporting for work in the event that an employee
    • is infected,
    • has had direct or potential contact persons with Swine Influenza,
    • lives near an affected residential area,
    • is suffering from respiratory ailments, or
    • is otherwise in a special risk category.

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:

  • a health officer,
  • a police officer on duty at the nearest police station,
  • a medical officer in charge of the nearest public dispensary, or
  • a health inspector.

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.

5. Conclusion

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

For further information on employers' obligations in relation to swine flu or pandemics generally, please speak to:

Duncan Abate ( )
Hong Tran ( )

Learn more about our Hong Kong office, Employment & Benefits and Insurance & Reinsurance practices.

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