Hong Kong: Protection under the Employees' Compensation Ordinance for employees contracting COVID-19

By Jenny Kwan, Jin Shi

05-2020

According to a report dated 1 May 2020 issued by the Hong Kong Workers' Health Centre, as of 30 April 2020, there were 74 confirmed cases in which individuals had contracted COVID-19 potentially as a result of their work, including medical staff, bar workers, airline and airport employees as well as band performers. As a consequence, there has been widespread discourse about whether employees should be entitled to protection under the Employees' Compensation Ordinance (Cap. 282, the "ECO") if they contract COVID-19 in the course of their employment.  Some have argued that the law should be amended to classify COVID-19 as a new occupational disease under Schedule 2 of the ECO. 

Under the ECO, if an employee sustains an injury or dies as a result of an accident arising out of and in the course of his or her employment, or suffers from an occupational disease prescribed by Schedule 2 of the ECO, the employer is generally liable to pay compensation to the employee.  It is for this reason that employers are required to have employees' compensation insurance. 

In a press release dated 10 February 2020, the Labour Department stated that it was looking into the issue of whether amendments should be made to the ECO.  However, due to the developing nature of COVID-19, it stated that more analysis of relevant medical and epidemiological data is required, given that it would be necessary to clearly specify in the ECO which industries and processes pose a greater risk for contracting COVID-19, as well as the prescribed period within which an employee must have been employed to work in those industries and processes. 

The Labour Department also clarified that, whether or not COVID-19 is classified as an occupational disease under the ECO, an employee can still claim compensation under Section 36 of the ECO if it can be shown that the employee contracted COVID-19 by an accident causing him or her to suffer a personal injury arising out of and in the course of employment. 

In determining whether becoming infected with COVID-19 amounts to a personal injury, the Labour Department would need to assess whether there was a sufficient causal connection between (i) the employment and the accident, and (ii) the accident and the injury suffered by the employee.  It would not be necessary to show that the accident was the sole cause of the injury as long as it was a contributing factor.  

Given the risk of claims, employers are advised to check whether their employees' compensation insurance adequately covers claims from employees who may have contracted COVID-19 in the course of, or as a result of, their employment, and to ensure that any such claims are promptly notified to their insurance providers.