Post Covid-19 Hong Kong: a new kind of ‘business as usual’?

Despite Covid-19 remaining a global concern at the time of this article, much of Hong Kong has in fact returned to its pre-pandemic hustle and bustle for quite a while. However, the pandemic has left an imprint on the city – apart from making face masks a must-have when going out, as there seems to be a new ‘usual’ in the way we work.

One of the biggest post Covid-19 questions facing Hong Kong businesses is whether we all actually have to be in the office – and therefore whether there is a need to rent as large an office space as we had pre-pandemic. Despite everyone’s initial uncertainties about working from home, it is now proven that people can work just fine even if they are not in the office, especially if their roles are not client-facing. This is one of the reasons why, despite many offices having reopened, many employees are still given the option to work from home – not only as an effort to create social distancing among employees, but also as a new way to minimise costs. Given it is no secret that Hong Kong’s rental prices are one of the highest in the world, many business owners have been triggered by the situation to start thinking of cutting down on office space.

However, is home office a solution for all jurisdictions, including Hong Kong?

Generally speaking, like all other jurisdictions, from a legal perspective, especially if an employer is thinking of allowing its employees to work remotely on a long-term basis, employers should ensure that their employment contracts allow, or are amended to allow, the employer to request the employee to work remotely. Further, if not already in place, employers should ensure that there are clear guidelines that, for example, give employers the discretion request employees to work remotely or return to the office, and on how employers would monitor attendance and overtime work. Separately, employers shall ensure that their employees are safe at the workplace, and such duty continues even when an employee is working from home. Considerations have to be made regarding confidentiality issue and whether there is sufficient IT support in place.

While Hong Kong employers have to consider all of the above matters, Hong Kong has its own unique considerations.

The housing situation of Hong Kong presents a different set of considerations to employers when deciding whether to cut down office space and designate certain roles to work remotely permanently. Our housing prices (both for purchase and rental) are well known for being one of the highest internationally, especially given their small sizes (an internet search reveals that our average flat size is just under 500 square feet, while a standard car parking space is 134 square feet). In light of high living costs, it has become increasingly common for people to live in so-called ‘nano’ flats, or for married couples to continue to live in the same apartment as their parents, even when they have children. One can therefore imagine how working from home may look like for an employee: while she is trying to have a conference call in her room, her in-laws are watching television in the living room as they avoid leaving the apartment; her husband, who has similarly been instructed to work from home this week, is sitting across from her (as there is no other space in the apartment) trying to concentrate on his documents; while their son, who is having online classes in his room next door, has just knocked on the door for help with another connection problem.

Working from home has been reported to have caused quite a lot of family issues in Hong Kong, and even led to a noticeable rise in the number of people seeking psychological or psychiatric help, given the heightened stress levels that come with having to work in the kind of environment we describe above. We therefore recommend employers, before deciding on whether to make working from home a long-term arrangement, speak with their employees and understand how they feel about it. There are other measures which an employer may look at in order to cut down on office rental, such as moving some staff out of Hong Kong’s central business districts to newer business areas, as many businesses have already done in the past few years.

In addition, it is a legal requirement in Hong Kong that employers enrol all their employees in an employees’ compensation scheme for work injuries in the course of employment and occupational diseases. Employers should make enquiries with their insurance companies to ensure that their employees who are working from home are covered by an effective employees’ compensation scheme, because some insurance companies have already indicated that their current schemes do not cover employees under long-term work from home arrangements.

For those who are re-opening their offices in Hong Kong, some employers may insist that only those employees who have been vaccinated could return to the office. Employers in such regard should beware of falling foul of the Disability Discrimination Ordinance, as it would be arguable as to whether it is reasonable for employers to require employees (especially employees who do not have much client interaction) to be vaccinated before returning to the office, and therefore potentially triggering disputes as to whether employees who have been vaccinated are treated more favourably than those who choose not to (thereby falling foul of discrimination laws).

Lastly, there may be occasions where remote working is mandatory because an employee has been placed under mandatory quarantine. For example, currently, if more than one person at an office premise has tested positive for Covid-19, everyone at the premise would have to be tested for Covid-19 and would have to stay at home until negative results return, and those deemed by the Centre for Health Protection to be ‘close contacts’ of the confirmed case(s) would be placed under mandatory quarantine. To prepare for the unforeseeable events that certain employees may have to suddenly work remotely for a short while, employers should, even if they do not plan to offer flexible working arrangements, prepare clear remote working guidelines.