New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Hong Kong

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The Hong Kong government has not implemented any specific laws or guidelines related to remote-working arrangements. However, the privacy commissioner for personal data has issued various guidelines concerning protecting personal data under work-from-home arrangements. It should be noted that these guidelines are not legally binding but rather recommendations from the privacy commissioner. They apply to organisations and employees, but there is no specific mention of the guidelines extending to gig workers or independent contractors.

The guidelines state that the same standard of security should be applied when employees are working from home as when they are working from the office. They list out various considerations for organisations, including:

  1. setting out clear policies on the handling of data during work-from-home arrangements;
  2. taking all reasonable steps to ensure the security of data, particularly when information and communications technology is used to facilitate this; and
  3. providing sufficient training and support to employees under work-from-home arrangements to ensure data security.
Last updated on 11/10/2021

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United States

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Yes, many states have passed laws that recognise remote-working arrangements. This includes laws concerning employee reimbursement of costs relating to remote work, workers’ compensation, tax, timekeeping and meal breaks, data privacy, and providing accommodation.  Because companies may be legally considered to be employers or “co-employers” of consultants and contractors, these rules may also apply to non-employees.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Hong Kong

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As a result of the covid-19 pandemic, many companies in Hong Kong encouraged their staff to work remotely. This meant taking documents home from the office and using video conferencing, cloud computing and intranet platforms, where those software solutions were available, and also using personal devices to work more. As a result, confidentiality and security of data became more at risk.

Due to space constraints in Hong Kong, it is not practicable to expect employees to work or conduct confidential discussions in an isolated area away from others. Often employees are sharing workspace with family members and may also share a laptop or PC with them. If working from home is not an option for an employee, he or she may be working from cafes or public spaces. As a result, non-employees may overhear confidential discussions or see confidential documents. If these conversations and documents contain personal data (of employees, customers, clients, suppliers or other third parties), then the potential leakage of this data may constitute a breach of the Personal Data (Privacy) Ordinance (PDPO). There may also be contractual confidentiality breaches.

A typical home network is unlikely to have the same stringent security protections in place that an office network does. Attackers have seen an opportunity to steal user credentials from personal devices, which are now being used for work and likely do not have the same security protections as corporate devices. Using unsecured networks and devices may lead to data leakage or theft, which would be in breach of the PDPO.

If personal data is being processed by new third parties as a result of having to implement remote-working arrangements, an employer will need to notify its employees of this. This can be done by issuing employees with a revised or new Personal Information Collection Statement (PICS) setting out the change. The PDPO specifies that a data user, when collecting personal data directly from a data subject, must take all reasonably practicable steps to ensure that the data subject is informed of the intended use of their data and who will be handling such data. A PICS is therefore used to comply with these notification requirements and is a statement regarding a data user’s privacy policies and practices in relation to the personal data it handles. 

Last updated on 11/10/2021

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United States

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Data privacy rules vary from state to state. Remote work, in particular, raises issues where employers have less control over the working environment and employees are potentially accessing sensitive information in their home that they share with others.  Employers should ensure that employees working remotely can demonstrate that their location provides sufficient privacy, security, and safety to secure the confidentiality of the employee’s work, company information and materials.  Additionally, health-related data must be protected and employers should be required to protect trade secrets and other confidential data. Employers must also maintain reasonable security measures to protect sensitive personally identifying information. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Hong Kong

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There are no specific statutory limits on employers monitoring employees’ activity in remote-working arrangements, as long as the employer complies with the PDPO. However, employers mustn't collect employees’ personal data (ie, browser history) without having notified them in advance of the personal data that they intend to collect and the purpose for which it is being collected, under the PDPO. This can be done in a PICS, where monitoring of an employee’s use of telephone, email, internet and video for performance-related and other reasons is likely to be included.

The privacy commissioner has released guidance about monitoring and personal data privacy at work. This includes guidelines on the monitoring of telephone, email, internet and video. These monitoring practices should serve a legitimate purpose that relates to the function and activity of the employer and should be necessary for that purpose. If an employer does not believe it can adhere to these guidelines, it may prefer to find less invasive ways of ensuring that employees are adhering to their job duties when working from home (eg, regular check-ins or asking them to complete timesheets).

Last updated on 11/10/2021

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United States

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Monitoring and surveillance laws vary from state to state, and there are also, potentially, tort and criminal laws regarding invasion of privacy that must be considered where the employee has an expectation of privacy.  While audio or key-stroke monitoring may be minimally intrusive, video surveillance is almost always problematic. Some states require only one-party consent for audio monitoring, but others require that all the parties to a conversation consent to such monitoring.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Hong Kong

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Employers in Hong Kong are not statutorily required to provide work equipment for employees working remotely or reimburse them for costs incurred in buying such equipment themselves or for the cost of working from home (eg, mobile phone, internet, utility costs and computer usage expenses).

Generally speaking, an employment contract will contain a term stating that all legitimate business expenses reasonably incurred in the proper performance of the employee’s job duties will be reimbursed by the employer to the employee. As such, an employee could potentially make a contractual claim against his or her employer for expenses incurred in buying work equipment for remote working and for the other costs of working from home, unless there is a policy or written instruction from the employer stating otherwise.

If the employer does not reimburse the employee for these costs, the employee may argue that the employer is in breach of contract, or that the costs incurred if not reimbursed would be an offset against earned wages, and therefore result in an unlawful deduction from wages. This, in turn, could lead to the employee bringing a potential claim for constructive dismissal or unreasonable variation of employment terms.

Therefore, it would be helpful for employers to have a clear policy on reimbursement of expenses related to remote working either as a standalone policy or as part of a wider remote-working policy, including what employees can and cannot claim, whether there are any caps on expenditure, how to make such claims and what types of documentary proof of expenditure are required.  

Last updated on 11/10/2021

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United States

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There is a patchwork of various state laws, either by judicial decision or statute, affecting expense reimbursement, particularly in instances involving mandatory remote work as opposed to remote work requested by the employee. Ascertaining expense reimbursement obligations is one of the most challenging aspects of implementing a compliant teleworking arrangement. Some states do not require reimbursement of work equipment, internet, etc, while others, such as California, do require reimbursement of “all necessary expenditures.”

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Hong Kong

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Salaries tax

In Hong Kong, employees are responsible for paying tax on their employment income; this is called salaries tax. Whether and how much salaries tax is payable by employees temporarily working abroad will depend on whether their employment is considered “Hong Kong employment” or “non-Hong Kong employment”. The Inland Revenue Department will consider various factors when determining if employment is Hong Kong or non-Hong Kong, such as where the employment contract is negotiated, concluded and enforceable; where the central management and control of the employer is; and where the employee’s remuneration is paid.

Employees with Hong Kong employment will generally remain subject to salaries tax in Hong Kong if they temporarily work outside of Hong Kong for part of the tax year (beginning of April to end of March the following year). If the employee works outside of Hong Kong for the full tax year, then they will not be subject to salaries tax in Hong Kong. Employees with non-Hong Kong employment who work outside of Hong Kong temporarily will generally not be subject to salaries tax in Hong Kong.

Social security

Hong Kong does not have a comprehensive social security system similar to other countries, but most employers and employees in the city are required to make contributions to a mandatory provident fund (MPF), which is a regulated privately managed retirement fund.

Where mandatory contributions are being made to the MPF, the fact that an employee is working temporarily abroad will not affect the contributing obligations of the employer or the employee.

Employment law

Employers would need to be cautious as to whether local employment laws (in the overseas country) would apply to the employee when working remotely from that country. These may include minimum wage restrictions, paid annual holidays, maternity or paternity entitlements and rights on termination.

Employers in Hong Kong also have a statutory and common law duty in respect of the health and safety of their employees. This includes ensuring that the employee has a safe workplace. If an employee suffers a personal injury by accident that “arises out of and in the course of employment”, the employer may be liable to compensate the employee even if the injury was sustained while the employee was working from abroad.

Last updated on 11/10/2021

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United States

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Employees who cross state borders trigger a host of risks for their employer. The obligations of the jurisdiction where the work is performed will generally prevail (depending upon duration).  For example, state law, and even municipal law, control employers’ leave obligations (such as time off to vote, paid family leave, or paid sick leave).  With paid sick leave, this can become very complicated, as each law has different tracking, recordkeeping and accrual requirements. In addition, state withholdings and income tax, as well as insurance (workers compensation), must be considered.  Local ordinances often also control wage-and-hour issues such as how and when an employee must be paid, pay-statement requirements, whether an exemption applies or overtime must be paid, and other nuanced areas such as required employer policies, or notices relating to wages or unemployment insurance.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Hong Kong

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Unless the employee has a clear policy or a contractual provision that permits it to reduce salaries or benefits in this situation, it is unlikely that the employer could lawfully make such reductions without the employee’s consent. Where an employee has elected to work remotely and there is such a policy or contractual provision in place, the reduction in salary or benefits is unlikely to be challenged by the employee. Where an employee has been forced to work remotely by their employer (due to covid-19 or otherwise), such a reduction may be challenged as the remote working has not occurred at the employee’s request.

Generally, if an employer changes an employee’s salary or benefits unilaterally, an employee could bring potential claims against it for unlawful deduction from wages, unreasonable variation of employment terms or constructive dismissal.

Last updated on 11/10/2021

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United States

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Most jurisdictions in the US have at-will employment, so that with appropriate advance notice, salaries and benefits of at-will employees can be reduced without issue (ie, assuming no contract and the pay does not fall below the threshold for minimum wage or to maintain any particular exemption).  However, as with any workplace policy, the law mandates that selection for wage reduction be without regard to protected status such as race, age or disability. Thus, there may be an exposure to risk of claims to the extent that those who work remotely are seeking an accommodation or there is a potential for disparate impact.  Thus, employers should ensure that there is no "disparate impact" on any protected status that is required to work remotely.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Hong Kong

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As of to date, employers in Hong Kong do not have a statutory right to require their employees to receive covid-19 vaccination. That being said, the government has already made covid-19 vaccination compulsory for civil servants, healthcare workers, care home staff and school teachers. The government has also been urging employers in certain private sectors to mandate covid-19 vaccination for employees.

Further, in order to boost Hong Kong’s vaccination rate, the government has, in February 2022:-

  1. introduced the vaccine pass rules which require all visitors, including employees (except for certain exempted groups), to be covid-19 vaccinated when entering certain premises, such as shopping malls, restaurants, department stores, supermarkets, and hair salons;
     
  2. published the Employment (Amendment) Bill 2022 (the “Amendment”) which provides (amongst other things) that it is a valid reason to dismiss an employee who refuses to comply with a “legitimate vaccination request”. A “legitimate vaccination request” requires a non-exempted employee to show that he/she has received at least one dose of vaccination (the required number of doses of vaccine progressively increases overtime). Although the Amendment has not yet come into force as of to date, it is expected that this will take place soon.

In light of the abovementioned government actions, we have seen an increasing number of employers, especially those in the food & beverage, hospitality, aviation and healthcare sectors, implementing a mandatory vaccination policy for its employees to meet their operational needs.

It is also noted that the Amendment in relation to valid reason for dismissal will have a sunset clause. This means it will be repealed when the pandemic is no longer a matter of public health concern.

Under common law, employees are expected to comply with any “lawful and reasonable” direction from their employer. It is lawful to request that an employee be vaccinated, but there is a question over whether it would be considered reasonable. An employer’s health and safety obligations are often cited as to why such a direction would be reasonable. The reasonableness would largely depend on the particular sector the employee works in, the employee’s role and nature of duties, his or her contact with people, whether the role can be carried out remotely without issue, and whether the vaccine pass rules apply to the employee’s workplace. Certain sectors, such as food & beverage, hospitality, aviation and healthcare, may be able to justify that it is reasonable to mandate employees be vaccinated due to the high-risk nature of the jobs and the workplace they are in.

If an employee refuses to receive a covid-19 vaccination, an employer cannot force the employee to be vaccinated. It could decide to do one of several things:

  • (when the Amendment comes into force) require the employee to comply with a “legitimate vaccination request” and a failure to do so could be a valid reason for dismissal;
  • request that the employee undergo regular covid-19 testing instead;
  • agree with the employee that they can temporarily work from home (if that is possible given the employee’s role): and
  • agree to a change of role for the employee (if their current role requires being in the workplace).

This is not an exhaustive list.

Last updated on 06/04/2022

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United States

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Federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for covid-19, accommodations must be made for those with religious objections or a disability.  Another option is to consider having employees show vaccination proof or submit to weekly covid-19 testing, wear masks, and keep physically distant from other workers and visitors.  Employers can also encourage and incentivise employees to get vaccinated by offering prizes, developing vaccination education campaigns, offering vaccinations on-site, covering any costs that might be associated with getting the vaccine, or providing paid time off for employees to get the vaccine and recover from any potential side effects. However, state lawmakers have introduced dozens of legislative proposals to make it harder for employers to require that employees get a covid-19 vaccine.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Hong Kong

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If an employer were to implement this condition, there may be employment law and data privacy issues.

The potential data privacy issues are set out in response to question 11 below.

From an employment law perspective, unless an employee’s workplace is subject to vaccine pass rules (see our response to Question 8 above for further details), the current position is that making entry to the workplace conditional on having a covid-19 vaccination may constitute a breach of contract or an unreasonable variation of employment terms, unless it was consented to by the employee or it amounts to a lawful and reasonable direction. If an employee is dismissed as a result of not being able to enter the workplace (eg, they were unable to carry out their full job duties without being in the workplace and were therefore made redundant), this individual could challenge the reasonableness of their dismissal if they have two or more years’ service. (However, as mentioned in our response to Question 8 above, after the Amendment comes into force, an employer could make entry to the workplace conditional on an employee having received a covid-19 vaccination by making a “legitimate vaccination request”, and the employee’s failure to comply with the request could be a valid reason for dismissal.)

Employees protected by Hong Kong’s anti-discrimination ordinances may also be able to bring claims against their employers if the condition is disadvantageous to them as a group and the individual is also personally affected. For example, if an individual who is pregnant or breastfeeding decides not to receive a covid-19 vaccination because of recommendations from their doctor regarding their baby’s health, and they are refused entry to the workplace, they may claim indirect sex discrimination on the basis that while the condition applies to the entire workforce, it is more disadvantageous to those who are pregnant or breastfeeding as they are less likely to be vaccinated and, in turn, it has disadvantaged her personally. Regarding this individual’s losses, this may be limited to injury to feelings but could also lead to financial loss if this individual missed out on opportunities as a result of not being able to enter the workplace or was dismissed.

Notwithstanding the above, the government has recently required that all civil servants must receive two covid-19 vaccine doses by 1 April 2022, or they will be banned from government premises (unless they hold a medical exemption). Further, with the introduction of the vaccine pass rules (please refer to our response to Question 8 above to further details), employees who are unvaccinated would in any event be banned from entering their workplace if their workplace is subject to vaccine pass rules.

Last updated on 06/04/2022

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United States

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While federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for covid-19, accommodations must be made for those with religious objections or a disability through alternative measures. Those can include getting tested weekly or working remotely.  In addition, state law is rapidly evolving in this area and we have seen a steady increase in worker lawsuits that are filed on the basis that treating unvaccinated people differently is discriminatory or unlawful. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Hong Kong

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Yes. The government has made covid-19 vaccination compulsory for civil servants, healthcare workers, care home staff and school teachers; in particular, all civil servants must receive two covid-19 vaccine doses by 1 April 2022, or they will be banned from government premises (unless they hold a medical exemption).

Further, with the introduction of the vaccine pass rules (please refer to our response to Question 8 above to further details), employees who are unvaccinated would be banned from entering their workplace if their workplace is subject to vaccine pass rules. (e.g. shopping malls, restaurants, department stores, supermarkets, and hair salons).

Last updated on 06/04/2022

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United States

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Yes, this includes the healthcare industry, as well as some federal and municipal agencies.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Hong Kong

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Employers must ensure that they provide their employees with a Personal Information Collection Statement (PICS) before collecting their personal data in respect of medical and vaccination information, which sets out how they will collect, use and transfer the employees’ medical and vaccination data. It may be that an employer has already issued employees with PICS that cover the provision of medical and vaccination information for the specific purposes now required, but the wording should be carefully checked before relying on it, to ensure it definitely covers the current circumstances.

Under the PDPO, employees should be notified of the purpose for which their personal data is being collected and the personal data should only be used for that purpose. If, once the personal data has been collected, the employer then wants to use it for a different purpose, it will be necessary to seek the employees’ consent to it being used for that alternative purpose. An example may be that an employer notifies employees that it is seeking their medical and vaccination information for monitoring purposes only and later decides that it wants to use that information to devise a return to office strategy and determine whether to dismiss certain employees. In this situation, the employer would need to notify its employees of these alternative purposes and ask each of them to provide their consent to their personal data being used for these new purposes. If the employees refused to provide consent, then the employer would not lawfully be able to use the personal data for the new purposes and, if it did, it would be in breach of the PDPO.

The PDPO also requires employers to obtain no more personal data than is necessary for the purposes it is collected. For example, with a vaccination record, it may not be necessary for the employer’s purposes to know what type of vaccination an employee had and, as such, this information should not be collected.

Employees must also be notified of whether it is mandatory or voluntary to provide their personal data and, if it is mandatory, the consequences if they decline to provide it. For example, with vaccination information, an employer may inform employees that it is mandatory to confirm whether or not they have been vaccinated and, if they decline to do so, they will be treated as unvaccinated for internal policy and strategy purposes.

Employers are required to inform employees of the classes of persons to whom the data may be transferred. For example, if an employer wanted to use vaccination data to provide those who had been vaccinated with some form of benefit, the employer may need to provide the employees’ vaccination data to the third party who provides that benefit. Transferring personal data outside of Hong Kong is not currently prohibited or restricted, but employees should be notified if the data is to be transferred to a third party outside of Hong Kong (eg, a subsidiary or holding company of their employer).

Employees need to be informed of their right to request access to their personal data and employers must take precautions to protect personal data from leakage or unauthorised access, and only retain the data for a reasonable period that is necessary for its purpose.

Last updated on 11/10/2021

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United States

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With limited exceptions, the Americans with Disabilities Act requires employers to keep confidential any medical information they learn about any applicant or employee. Medical information includes not only a diagnosis or treatment, but also the fact that an individual has requested or is receiving a reasonable accommodation. In addition, employers must maintain reasonable security measures to protect sensitive personally identifying information.  Specific data privacy rules vary state by state.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Hong Kong

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There are no specific health and safety rules that have been introduced for remote workers by the government. However, employers must abide by their statutory and common law duty to ensure the health and safety at work of their employees, as far as is reasonably practicable. This obligation would likely extend to remote working (although this has not yet been tested in the courts). Employers would therefore be required to ensure that their employees’ home-working environment is commensurate with the standards that they are required to uphold in the workplace, otherwise they may find themselves liable for breach of their statutory or common law duties.

While there has been no specific legislation on health and safety considerations for remote workers, some employers in Hong Kong have introduced policies and guidelines for remote workers, including related to workspace configuration, conducting desk assessments, recommended stretches and breaks and also a focus on mental health.

Last updated on 11/10/2021

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United States

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The OSHA governs the relationship between employers and employees with respect to workplace health and safety, and provides employer mandates regarding possible hazards in the traditional workplace. The key issues in work from home safety revolves around ergonomics. But the law recognises that employers have limited direction and control over the employee’s residence or other remote locations such as coffee shops, public libraries and so forth.  Nevertheless, employers have in many instances required employees to commit to keeping a safe workplace in their home and wherever they may work.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Hong Kong

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The laws on the mental and physical wellbeing of employees have not changed in Hong Kong as a result of the pandemic. Employers are still required to ensure that their employees’ health and safety is upheld; however, this may be more challenging when employees are working remotely, especially where employers do not have an effective infrastructure already set up to deal with remote working and staying in touch with each other.

The pandemic has caused a wide range of mental health issues from anxiety to loneliness, not being able to turn off to not being able to self-motivate, dealing with loss and grief, and having to balance working life, homeschooling and other caring responsibilities. Employers have developed an increased awareness of these issues being experienced by their staff and some have introduced specific mental health policies and measures to try to assist their staff during this period. If these mental health issues are not dealt with properly, they can lead to grievances, sickness absence, disability discrimination claims or constructive dismissal claims.

Employers have also had to grapple with how to treat time off for covid-19 and long covid, and some have adapted their existing sick leave policies accordingly.

In addition, employers have needed to consider whether their employee compensation insurance covers remote working, whether their private health insurance covers all types of covid-19 treatment and whether their travel insurance covers their employees travelling abroad for business and contracting covid-19.

Last updated on 11/10/2021

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United States

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With covid-19, the focus has shifted from workplace injury to workplace illness. Thus, the obligations have been expanded in that employers have had to think about exposures both inside and outside the workplace, and establishing safety protocols to help prevent employees from bringing the hazard into the workplace. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Hong Kong

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The Occupational Safety and Health Ordinance (OSHO) covers all employees in their workplace, which may include an employee working from home, especially if their contract specifies this as their workplace. If an employee’s place of work is specified as “mobile” or “in the field”, then this may also be deemed the employee’s workplace under OSHO. As such, we do not believe there would be any differentiation between the obligations an employer has towards a mobile worker versus a home worker under OSHO. The same is true under common law.  Where there may be a difference is in relation to employee compensation insurance, as the insurer may potentially be open to insuring a home worker but not a mobile worker, but this would be subject to negotiation with the particular insurance provider.

Last updated on 11/10/2021

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United States

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  • at Littler
  • at Littler

Yes.  Employees who as part of their job travel, visit customers and clients, and go from place to place, may be exposed to health and safety conditions that are beyond their employer’s control.  Nevertheless, employers need to take reasonable steps to keep their employees safe, even when they are outside the brick-and-mortar workplace.  The employer’s obligations to ensure their workers’ safety follows them as they travel for work, and, to the extent feasible, employers need to anticipate and mitigate against potential risks. On the other hand, employees who work from home are less likely to be exposed to these kinds of hazards, and the employer’s responsibility for the safety of employees who work from home is far less than for mobile workers or, of course, on-site workers. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

Hong Kong has not introduced any specific employment or health and safety rules relating to remote working.

An employer’s duty to take reasonable care of its employees’ health and safety at work may extend to safeguarding its employees’ mental health and wellbeing, but there are no specific, separate obligations on employers concerning protecting employees’ mental health.

There are, however, obligations under the Disability Discrimination Ordinance not to discriminate against employees on the basis of their mental health condition (if such condition constitutes a disability), so employers should take care not directly or indirectly to treat employees with mental health conditions detrimentally, or harass or victimise them.

Although not legally required, employers should consider regularly checking in on employees who are working from home to ensure they are coping ok and not feeling isolated or overwhelmed.

Last updated on 11/10/2021

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United States

  • at Littler
  • at Littler
  • at Littler

This is not an area that has been a priority in the United States, particularly if the employees are remote. However, this will likely be a developing area in the future that employers will have to consider in light of the changes being brought about by the pandemic.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

During the peak of the pandemic in Hong Kong (mid-2020), as many businesses were forced to suspend services for covid-19-related reasons, the government introduced the Employment Support Scheme (ESS). The ESS gave all eligible employers in the city the right to claim a subsidy of 50% of their employees’ wages for up to six months (with a cap of 9,000 Hong Kong dollars per employee per month). Employers who received subsidies under the ESS were prevented from making redundancies during the subsidy period, or else the subsidies would be clawed back.

In March 2022, the government announced that a new round of ESS will be launched in response to the fifth wave of covid outbreak in Hong Kong. Based on the government’s announcement, unlike the ESS in 2020, certain industries which are deemed to be less affected by the pandemic (such as supermarket and pharmacy chains, banks and financial institutions), would be excluded from participating in this round of ESS. The full details of this new around of ESS are yet to be announced, though it is expected that it will be open for application in April 2022.

The government has often reiterated that employers should try to avoid making redundancies during this difficult period, and that employers may wish to consider alternative options such as unpaid leave or reduced working hours instead. That said, the government has not legislated to prevent redundancies or changes to employees’ terms and conditions during covid-19, and so employers have had relative freedom to make such changes, subject to the normal rules regarding needing employee consent to make contractual changes (other than immaterial ones where the contract contains a right to make changes).

Last updated on 06/04/2022

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United States

  • at Littler
  • at Littler
  • at Littler

The pandemic has caused many companies to have to re-evaluate employee salaries and wages, and to make staffing changes. Where required by collective-bargaining agreements, these changes have resulted in bargaining with unions.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

There have not been any particular actions brought forward by trade unions or other worker associations regarding protecting the entitlements and rights of remote workers in Hong Kong.

Trade union presence in Hong Kong is not as prevalent as it is in other countries. While we have seen some trade unions engaged on issues relating to the reduction of pay and benefits and redundancies, we have not seen this with remote working.

Last updated on 11/10/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Unions are criticising company responses (especially the lack of paid leave, sufficient staffing, and a process to address employee safety concerns) in recent organising efforts. The best thing non-union employers can do to avoid union drives of this nature is to be transparent. Employers should develop and communicate a covid-19 response that is compliant with state or federal mandates and “best practice” recommendations, be as flexible as is reasonably possible in balancing the interests of employees and the business, and regularly update employees.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

As the local pandemic situation in Hong Kong has been relatively stable, remote-working arrangements have been dealt with in more of an ad hoc fashion with many employers not putting in place formal remote-working policies.

Generally, there is no statutory obligation to consult with trade unions in Hong Kong on implementing remote-working arrangements. Some companies may, however, have policies in place that require them to consult with trade unions before making changes to employees’ terms and conditions of employment. Collective bargaining is not recognised in Hong Kong, so even if consultation with trade unions does take place, any change to employees’ employment contracts has to be individually consented to by each employee.

Last updated on 11/10/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Unionised employers may unilaterally implement a policy requiring employees to work from home if the applicable collective bargaining agreement contains language granting the employer the right to implement such a requirement. Unilateral action also would be permissible if a local, state or federal law mandates working remotely for certain classifications for employees. Even in that case, however, the employer would still have an obligation to bargain over any discretionary aspects of the policy, such as:

  • classes of employees subject to remote work (unless specified by the order);
  • frequency and timing;
  • consequences of an employee’s refusal; and
  • where the remote work will be performed.

Other provisions in a collective bargaining agreement may cede control over the situation to the employer. For example, the CBA may include a “management-rights provision” which permits the employer to operate and manage the workplace, require standards of performance, implement improved operational methods and procedures, or promulgate rules, regulations and personnel policies.  Even if the clause does not explicitly address the issue of working from home, it may be argued that the union has waived its right to bargain over the matter. 

Employers with union-represented employees need to carefully review existing collective-bargaining agreements to determine whether there is sufficient management rights language that would permit an employer to mandate working from home as a condition of employment.

Furthermore, to the extent an employer seeks to avoid a bargaining obligation by claiming that working from home is consistent with a local, state, or federal law or regulation, it will need to show that it is actually mandated by the law to require this.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021