Practical Privacy and Employment Issues encountered by Employers under COVID-19 Pandemic
It would not be an overstatement to state that the COVID-19 pandemic may be the biggest global crisis that most people have experienced. In light of travel restrictions, mandatory quarantine requirements, work from home arrangements, and government shutdowns, many employers have to take measures to protect the well-being of their employees, and to ensure business continuity without unintentionally breaching the law. As a quick reference, we set out below some short and practical answers to common issues raised by employers.
A. Personal Data
The Privacy Commissioner for Personal Data has stated that personal data privacy right is not an absolute right, and that it may be subject to other competing rights or interests, such as the absolute right to life and the interests of the public, including public health. In this regard, the Commissioner has recently issued some guidance on what data can be collected, how they should be collected, how they should be stored and under what circumstances data can be collected.
Collecting Health Data for Protecting Employees. The Commissioner has indicated that in times of COVID-19, it is generally justifiable for employers to collect temperature measurements or limited medical symptoms of COVID-19 information of employees and visitors solely for the purposes of protecting the health of those individuals.
Storage and Retention of Data. Data should not be stored longer than necessary for the fulfilment of the purpose. In the case of protection against COVID-19, data should be deleted after there is no evidence suggesting that any employee had contracted COVID-19 or had close contacts with the infected. In any event, as health data is sensitive personal data, such data should be stored in securely to prevent against unauthorised or accidental access, processing, erasure, loss or use.
Notifying Individual About Collection via PICS. The employer should ensure that the Personal Information Collection Statement (PICS) is provided to the employees before the data is collected and states clearly the purpose of collection (e.g. protection of public health), the classes of persons that data can be transferred to (e.g. public health authorities), and how long such data can be retained (e.g. no longer than 30 to 60 days to ensure that no employees have contracted COVID-19).
Disclosure of Health Data to Third Parties. Pursuant to Section 59 of the Personal Data (Privacy) Ordinance, the employer could disclose the personal data if it relates to safeguarding the physical or mental health concerns of the data subject or any other individual in the interests of the public. In particular, the Commissioner has indicated that disclosure of the identity, health and location data of individuals to the Government or health authorities solely for the purposes of tracking down and treating the infected, and tracing their close contacts when pressing needs arise will not be considered a contravention of the Ordinance. However, if an employee unfortunately contracts COVID-19, whilst the employer should notify other employees, visitors and the property management office, the employer should not disclose personally identifiable information of the infected.
Travel History. The Commissioner has indicated that it is justifiable for employers to ask for travel data from employees who have returned from overseas. However, the information collected should be used solely for the purpose of protecting public health. The Commissioner has not indicated whether such collection would extend to an employee’s family members’ travel history, but if employees are asked to provide this information on a voluntary basis, the employer should ensure that this information is also used solely for the purpose of protecting public health and deleted once the purpose of collection has been fulfilled.
B. Employment Arrangements
Annual Leave. Ordinarily, employers and employees shall mutually agree when an employee should take annual leave. However, given the lack of commercial activities, many employers have asked employees to take their annual leave entitlements. Subject to anything to the contrary in the employment agreement, pursuant to Section 41AA of the Employment Ordinance, an employer can ask an employee to take his/her annual leave by giving the employee no less than 14 days’ prior written notice.
No Pay Leave / Pay Reduction. It is an unfortunate situation, but many businesses have had to ask its employees to take no pay leave or to accept a reduction in pay. This is actually considered a unilateral variation of the employment contract on the part of the employer and legally, the employee does not have to agree to such variation. In particular, the employee may be able to claim “constructive dismissal” in that the employer is in effect terminating the employment relationship, entitling the employee to claim payment in lieu of notice, accrued but unused annual leave, and any other entitlements under the employment contract. Therefore, instead of imposing such a variation, the employer may wish to enquire whether the employee is open to such a variation, and if the employee agrees, this variation should be clearly documented in writing. In any event, the employer may always consider terminating an employment relationship pursuant to the terms of the employment contract.
Government’s Subsidy. On 8 April 2020, the Government, among other things, announced that it will subsidize 50% of the monthly wages of an employee (up to a maximum subsidy of HK$9,000 per month) for a period of six months. It is important to note that an eligible employer has to give an undertaking that they cannot implement redundancy (e.g. that the total number of headcount cannot be reduced, but the employer retains the flexibility to terminate and hire employees as part of its normal operations). Furthermore, the subsidy does not restrict employers and employees from agreeing to a reduction in work hours or pay.
Please contact our Partner, Charles To (email: [email protected]), if you wish to know more about this topic. Please also follow ELLALAN’s LinkedIn page for further news and updates: https://www.linkedin.com/company/ella-cheong-&-alan-chiu-solicitors-&-notaries.
Ella Cheong & Alan Chiu, Solicitors & Notaries