To grant sick leave or not? Many employers are wrestling with that question during the fifth wave of the Covid-19 pandemic and its massive number of Omicron variant infections. Large numbers of employees are not reporting for work, and there is a grey area in the law on how to handle these work absences.

What qualifies an employee as “sick”? Under Hong Kong’s Employment Ordinance, paid sick leave or sickness allowance is granted to employees under a continuous contract of employment who take sick leave for four or more consecutive days supported by a medical certificate, provided they have accumulated sick leave days.

For example, they receive two days per month for the first 12 months and four days per month thereafter, up to a maximum of 120 days.

If an employee tests positive for Covid-19 via a PCR test, there should be no issue with their absence being treated as paid sick leave. However, many other issues have arisen with the pandemic and how “sickness” is defined, especially in the Hong Kong context.

For example, what if someone tests positive via a rapid antigen test (RAT)? Can RAT tests be manipulated to show false positive test results, as suggested by an employee who claimed paid sick leave on the back of one?

Also, how does one obtain a medical certificate when one is supposed to self-isolate? The Labour Department has issued a publication urging employers to be “compassionate” and to consider granting the employee paid sick leave even without a medical certificate.

This does not impose a legal obligation on employers to waive the medical certificate. Obviously, good employers will do so and give their employees the benefit of the doubt that they are being honest.

Another potential conundrum lies in employees who are not “sick” but test positive and are asymptomatic and in isolation. White-collar employees can and usually do continue to work from home, but what about delivery drivers, grocery store shelf stockers or cleaners?

If it is a compulsory isolation, then technically the Department of Health should issue them a medical certificate, though these have not always been issued in a timely manner. Some employees who need to attend their job in person have been dismissed because of their absence from work, with little recourse given their limited resources.

What about close contacts who have been consigned to quarantine? These employees are not considered “sick”, so how should employers deal with them? Employees are complying with anti-epidemic requirements and, according to the Labour Department publication, employers “may follow [Employment Ordinance] requirements and pay sickness allowance” to employees.

Since no legal obligation is imposed on the employer, practices range from paying sick leave and treating the quarantine period as unpaid leave, to deducting from paid annual leave and even dismissal. To address these issues, the Employment (Amendment) Bill 2022 was recently introduced with the aim of providing sick leave days for those in self-isolation or quarantine.

Another issue is employees with Covid-19 claiming compensation for personal injury. Under the Employees’ Compensation Ordinance, employees suffering incapacity arising from an occupational disease are entitled to receive compensation, though Covid-19 is not currently listed in Schedule 2 of occupational diseases.

It is obviously difficult to prove that Covid-19 was contracted “out of and in the course of employment” rather than elsewhere.

Sick or not sick, scientifically or legally, good employers should adopt an empathetic approach during these tough times. Many local and multinational firms are providing extra benefits and allowances to their employees for both employee appreciation and retention purposes.

Dorsett Hospitality International is handing out HK$3,000 (US$380) to each of its employees who help perform contracts related to anti-epidemic measures. Goldman Sachs provides each employee a HK$1,000 allowance for test kits and masks, and HK$1,000 a week per child for extracurricular activities. Other companies offer their employees RAT tests, extension of annual leave balances, shorter working weeks, taxi allowances and so on.

Please take a moment to appreciate the stress and anxiety that employees face during this pandemic, their logistical challenges if they have children learning online and the added burden and costs of RAT testing and masking. Hopefully, our companies are valuing employee contributions generously.