Paying employees absent from work owing to covid19

For those employers and employees still uncertain, this is the position on pay for pandemic absenteeism from work during testing, while waiting for test results, and during “contact leave" because you are, or have been in direct contact with someone who has tested positive, and covid itself.

There is an overriding obligation every employer has toward the safety and health of all their employees as well as to customers and to the community as a whole.

Covid testing

For the employee: you are required to stay at home until the results are known, just in case you are positive and could be spreading the virus. That is a government requirement.

The government will not compensate you for lost wages (unless you are employed by the government). The private-sector employer is not obligated to pay you for the time not at work unless it is at the employer’s orders that you go for the test. However, if you test positive the employer can cover it under the sick-leave provisions in your contract, or under the sick-leave provisions of the Minimum Wages Ordinance, which are “14 working days sick leave annually with pay subject to having been continuously employed for at least six months, and the production of a medical certificate.

“Payment for sick leave shall amount to the difference between an employee’s pay and his entitlement to sickness benefit under the National Insurance Act.”

If you test negative, you are not able to claim payment for the required absence from work as sick leave because the test showed that you were not sick.

For the employer: There is no legal obligation to pay the employee for any time they spend not at work at the government's mandate, unless there is an existing provision in their individual or collective contract expressly stating that employees will be paid either at full pay, half pay or a quarter pay during government enforced pandemic leave.

Employees cannot be fired while they wait for the test results.

Unless the results are positive, the days absent cannot be deducted from statutory sick pay, either, if the employee is not sick.

It is important that such provisions be considered
now, drafted and put into employment contracts, because there will be many more viral infections. Remember swine flu? And bird flu? And chikungunya? And dengue every couple of years? And the one after chikungunya and before covid19? Was it zika? There will always be another one coming.

A WHO employee told me his organisation tried very hard to have several of them declared pandemics as well at the time, but didn’t succeed. We all seemed to get them, suffer, and get over them.

This time it is a pandemic and going forward, there officially will be others, so it is better to take in front before in front takes you.

Advice: Waiting for free government test results can take up to ten days. A private test can cost as much as $950 but you can get the results, usually, within 24 hours. If you can afford it, pay for the private test rather than lose ten days' pay or ten days' performance and then get a negative test.

Quarantine

If the covid19 tests are positive, employees have an obligation to go into quarantine for as long as the Ministry of Health says is necessary. This is a responsibility everyone owes to family, friends, community and the Government. It is essential that employees get an official certificate from the ministry certifying that the test was positive. A verbal response will not suffice.

There is no legal obligation for the employer to pay a worker absent because the government dictates their absence, but there is an implied obligation to use legally allocated sick leave with pay to cover as much of that absence as possible.

If the mandatory quarantine requirement extends past the employee’s allocated paid sick leave, the employer can offer the employee the option to take the balance of the mandated period from their vacation leave or as unpaid authorised leave.

The employer cannot terminate the employee’s employment during that period because the government has mandated that they stay away from work.

Precautions

If the test is negative, the obligations are simply to wear a mask, wash hands and keep reasonable distances. Go back to work and get paid.

Close contact

If the employee tests negative but a close contact tests positive, government mandates covid19 contact leave. This is not optional. The employee must take it.

Government will not compensate the employee for it (unless they work for government and will be paid for every absence anyway) and will not compensate the employer for the loss of an employee’s services.

Sick leave is only available if the employee him- or herself is sick, not because a family member or co-worker or neighbour is sick.

But government still insists the employee stay away from work nonetheless. Both employee and employer therefore must share the burden.

Don’t use up all an employee’s sick leave if they are not sick because, inevitably, they will get genuinely ill and have no more paid sick leave available, so will have to take no-pay leave at a time when they may need wages to cover medical expenses.

The employer may opt to ask the employee to work from home and continue to be paid, if the nature of their work allows it.

Recommendation: Where the employees’ work responsibilities can be extended to validly include work done from home, this may add a measure of productive responsibility to their work that can make it more valuable in the future.

Employees can be asked to recommend what they can and are willing to do from home themselves. They should be listened to.

If the employee is mandated to stay home by government and has no more allocated leave or opts not to take that leave as pandemic leave due to family or academic obligations, the employer may grant it as authorised unpaid leave (AUL), or, if they can afford it, as authorised paid leave (APL). In this case, there must be a formal cap on the number of paid days that can be used by one individual for all pandemic-related leave per annum, otherwise one employee can claim testing leave or contact leave multiple times before even getting to quarantine leave for real covid19 and/or for subsequent variants.

There is no confirmation yet on how long vaccine protection lasts, so preplanning leave provisions is essential.