Implications of the “3+4 quarantine arrangement” on employers – Health and Safety
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The Hong Kong government’s recent announcement to ease quarantine provisions upon arrival in Hong Kong is good news for many businesses. Under the new arrangement, from 12 August 2022 (Friday), hotel quarantine for overseas arrivals will be reduced from seven to three days, followed by four days of medical supervision at home or other accommodation. Travelers can go to work during the 4-day medical surveillance.
Below we present some questions and answers on what the “3+4 quarantine arrangement” means for employers.
- How does the “3+4 quarantine arrangement” work?
Arrival date is classified as day 0. Travelers are required to undergo Rapid Antigen Test (RAT) and PCR test at the airport and if RAT negative they will be sent to quarantine hotel designated (DQH).
Travelers will be quarantined at their DQH for 3 nights. They must submit to a PCR test on day 2 and if it is negative, they can leave the DQH the morning of day 3. They will then begin medical surveillance from day 4 to day 7 at home or in another hotel. So, for example, a person who arrives on August 12 will complete mandatory quarantine on the morning of August 15 and medical surveillance on the morning of August 19.
Travelers must undergo daily RAT testing from Day 0 to Day 10 and PCR testing is required on Days 4, 6 and 9.
- How does the health code system work under the “3+4 quarantine arrangement”?
The health code system involves a “red”, “amber” and “blue” code on the LeaveHomeSafe app. A red QR code will be issued to people with confirmed Covid-19. Travelers arriving in Hong Kong and testing negative at the airport with a RAT will receive an amber QR code. The amber QR code will last until the end of home medical surveillance, after which (provided the Covid-19 tests remain negative) it will be replaced by a blue QR code.
During home medical surveillance, a traveler may be discharged after testing daily negative for a RAT. On the other hand, the bearer of an amber QR code cannot enter the premises subject to the “active control” of the Vaccines Pass of the customer or visitor (eg restaurants and bars, residences for the elderly, etc.). That said, they can enter premises subject to the “passive control” of the Vaccine Pass, such as taking public transport to work or school, entering shopping malls, supermarkets and markets, etc. For places where there are no restrictions such as schools, there may still be additional restrictions or requirements imposed by the school.
A restriction of activities? Remarks
code red Yes Prohibition to leave the place of isolation
Code Amber Yes May not enter the following premises as a customer or visitor (see Note):
- Premises which are subject to “active control” of the Passe Vaccin, i.e. commercial catering premises (including bars or pubs), amusement play centres, public baths, fitness centers, entertainment venues, indoor public entertainment venues, party rooms, beauty and massage parlours, establishments, clubhouses, clubs or discotheques, karaoke establishments, mahjong-tin kau premises, indoor sports premises , swimming pools, cruise ships, covered event premises, hair salons or barber shops and religious premises.
- Premises that should be subject to a visual inspection of the Vaccine Pass whenever possible, i.e. outdoor public entertainment venues, outdoor sports premises and outdoor event venues.
- Other premises: nursing homes for the elderly, nursing homes for the disabled, schools and designated health facilities.
Note: Persons who work or study on these premises, or who receive services at designated health care premises, are not subject to the above restriction, but this remains subject to any additional rules or requirements imposed by the employers or persons in charge of individual premises according to their own needs. If people under the Amber Code category are working on the premises, the manager or manager is responsible for ensuring that the staff member strictly adheres to anti-epidemic measures, including wearing a mask.
Can enter premises subject to Pass Vaccine “passive control” (including shopping centres, supermarkets, markets, public transport, schools).
code blue Nope
- Is an employee subject to the 3 day hotel quarantine entitled to sick pay under the Employment Ordinance?
No. A mandatory quarantine period on return to Hong Kong from overseas required under the Cap. 599E will not be treated as a “sick day” under the Employment Ordinance.
- Can an employer require his employee to report to work during the 4-day home medical surveillance?
An employer can require their employee to report to work during the 4-day home medical surveillance, even for those working in premises that require an “active verification” of the Vaccine Pass. This is subject to the employer fulfilling its other contractual and legal obligations.
Employers must comply with their obligations under the Occupational Safety and Health Ordinance (OSHO) to ensure, as far as possible, the occupational health and safety of employees when deciding to require whether or not an employee reports for work during a period of medical surveillance at home.
See also our previous legal update on returning to work in Hong Kong after COVID-19 recovery for areas employers should pay attention to on the arrangement for recovered employees.
- Can an employer order their employee to stay home during the 4-day home medical surveillance period?
Yes, but it depends. An employer must consider certain elements when determining whether or not to order an employee to stay at home during the period of medical surveillance:
- Obligation under contract: Employers must continue to meet their obligations under the employment contract. Is there a contractual right for the employer to order the employee to work from home and/or not report to work? What are the implications for the employee if they are not allowed to come to work (especially when remote working is not possible), for example in terms of remuneration.
- Obligation under OHSO: The employer must assess the circumstances of each individual case and determine whether sending an employee home is a reasonably practicable action to take to ensure the health and safety of employees in the workplace.
- Restrictions under the Disability Discrimination Ordinance (DDO): The DDO prohibits the less favorable treatment of an employee due to a disability. Disability includes past and imputed disability.
Employers must evaluate all facts and circumstances, and taking into account obligations under OSHO, in determining how to arrange employees’ work and/or advise employees if they are required to attend work during home medical supervision. If employees are required to return to work during medical surveillance, employers should remind them to take the RAT daily and verify their test results before allowing them to return to the office. As always, employers should keep up to date with quarantine arrangements and clearly communicate working arrangements to employees.
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This article by Mayer Brown provides information and commentary on interesting legal issues and developments. The foregoing is not a complete treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action regarding the matters discussed here.
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