COVID-19 Hong Kong and Mainland China: Insurance considerations from Coronavirus impacts
In the past months, there have been ongoing reports about employees of airlines, hospitals and many other sectors suspected of having contracted COVID-19 during the course of their employment. Some labour groups in Hong Kong have urged the Government to consider amending the law to better protect employees by including COVID-19 as one of the occupational diseases under the Employees' Compensation Ordinance (Cap. 282) ("ECO").
The most helpful general definition of “occupational disease” is provided by International Labour Organization ("ILO"), which is "a disease which has a causal relationship with specific exposure in the working environment or work activity, and the incidence rate of the disease among the exposed workers is significantly higher than that in the rest of the population, so that the occupational origin of the disease in an exposed worker can be reasonably presumed."
The following are examples of occupational diseases listed in the ECO:
Construction workers are much more likely than employees working in other industries to be exposed in their working environments or work activities to the above occupational diseases.
In response to concerns expressed by labour groups, on 10 February 2020 the Labour Department indicated that they had commenced a study on the proposal to amend the law to add COVID-19 as one of the occupational diseases under the ECO. In a follow-up press release dated 29 April 2020, the Labour Department stated that they would make reference to the ILO criteria mentioned above and adopt an evidence-based approach to assess objectively whether a definite causal relationship exists between COVID-19 and certain types of occupation and whether there are higher rates of diseases occurring in these types of occupation when compared to the general population.
We still await an update from the Labour Department on the progress of their assessment.
If COVID-19 is listed as an occupational disease, it will make it easier for employees to claim compensation under the ECO.
The reason is that employees who are infected with diseases at work which are not listed as occupational diseases need to rely on s.36 of the ECO to make their claims. For claims made under s.36, the employees have the onus of proof that the infections have arisen out of their employment.
However, this burden of proof does not apply to employees who have contracted occupational diseases. According to s.32 of the ECO, where an employee dies or suffers a total or partial incapacity (either permanent or temporary) which:
the employee or members of his/her family shall be entitled to compensation as if the incapacity or death had been caused by an accident arising out of and in the course of the employment.
Regardless of whether COVID-19 is listed as an occupational disease, both employers and employees have active roles to play if employees have contracted or are suspected to have contracted COVID-19 at work.
For employers, they need to report the case to the Labour Department as soon as possible if they are so informed by their employees.
For employees, apart from notifying their employers, they may approach the Employees' Compensation Division of the Labour Department for direct assistance if they have doubts.
An interesting contrast can be made between the above-mentioned reporting requirements in Hong Kong and in the UK. Under the new guidance of HSE (Health and Safety Executive) of the UK, it is not necessary for employers to report every instance where their employees have contracted COVID-19.
Our colleagues at Clyde & Co in the UK have provided further guidance and detail on the UK position and circumstances for reporting which is available here.