Equal Opportunities Commission


E-news Issue 240


Sacking employees with COVID-19 could be unlawful

As Hong Kong scrambles to keep COVID-19 in check, employers should know that it may be unlawful under the Disability Discrimination Ordinance (DDO) to dismiss employees with the virus, including foreign domestic workers.

Infection with COVID-19 falls within the definition of disability under the DDO, which includes the presence of organisms causing or capable of causing disease or illness in the body. Although the law provides an exception for discrimination based on an infectious disease listed under the Prevention and Control of Disease Ordinance (e.g. COVID-19), it applies only where the discriminatory act is “reasonably necessary” to protect public health.

In assessing whether a certain act is reasonably necessary, an employer should consider whether there are alternative measures, the roles and functions performed by the relevant employee, the nature and duration of risk the infectious disease would cause to the organisation’s operations, the possibility of transmission, as well as the consequences of transmission and their severity. Blanket application of the exception without due consideration of these factors could result in unlawful acts.

In relation to situations involving COVID-19, employees diagnosed with the disease are likely to be hospitalised and take sick leave to which they are entitled under the Employment Ordinance. They would not be able to return home or resume employment until they have tested negative for the virus and have physically recovered. In such circumstances, it is unlikely that it would be “reasonably necessary” to dismiss an employee with the virus or after he or she has recovered.

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