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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France

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The first French law on teleworking was adopted on 22 March 2012. It was subsequently modified by an ordinance dated 22 September 2017. Today, three articles of the labour code cover the implementation and the functioning of teleworking (articles L. 1222-9 to L. 1222-11). In addition, two national collective agreements were concluded between employers' representatives and trade unions in 2005[1] and 2020.[2]

The definitions of teleworking given by article L. 1222-9 and by the agreement of 19 July 2005 provide that the rules on teleworking only apply to employees with an employment contract. These rules do not apply to self-employed workers.


[1] National collective agreement on Teleworking – July 19, 2005

[2] National collective agreement for a successful implementation of teleworking – November 26, 2020

Last updated on 21/09/2021

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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

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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France

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Employers must ensure the protection of their company’s data but also of employees’ data.

According to article L. 1222-10 of the French labour code, the employer must inform the teleworking employee of the company's rules regarding data protection and any restrictions on the use of computer equipment or tools. Once informed, the employee must respect these rules.

The collective national agreement of 26 November 2020, provides more details in article 3.1.4. It is the employer's responsibility to take necessary measures to protect the personal data of a teleworking employee and the data of anyone else the employee processes during their activity, in compliance with the GDPR of 27 April 2016 and the rulings of the National Commission for Technology and Civil Liberties (the CNIL).

The CNIL said in its 12 November 2020 Q&A on teleworking that employers are responsible for the security of their company's personal data, including when they are stored on terminals over which they do not have physical or legal control (eg, employee's personal computer) but whose use they have authorised to access the company's IT resources.

The National Agreement of 26 November 2020 recommends three practices:

  • the establishment of minimum instructions to be respected in teleworking, and the communication of this document to all employees;
  • providing employees with a list of communication and collaborative work tools appropriate for teleworking, which guarantee the confidentiality of discussions and shared data; and
  • the possibility of setting up protocols that guarantee confidentiality and authentication of the recipient server for all communications.
Last updated on 21/09/2021

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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

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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France

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The rules for monitoring employees do not differ between teleworkers and office workers. Thus, like any employee, teleworkers must be informed in advance of the methods and techniques used to monitor his or her activity (article L. 1222-3 of the labour code).

The implementation of a device allowing the control of the employee's working time must be justified by the nature of the task to be performed and proportionate to the purpose (National Agreement of 26 November 2020).

The CNIL said in a Q/A on 12 November 2020 that the devices used to monitor employees’ activity must not be aimed at trapping employees and cannot lead to permanent surveillance of employees. Thus, audio or video devices, permanent screen-sharing or keyloggers must not be implemented.

If the employer exercises excessive surveillance on his employee, it may receive a financial penalty.

Finally, the CNIL advises employers to prioritise monitoring the completion of missions by setting objectives rather than monitoring the working time or the daily activity of employees.

Last updated on 21/09/2021

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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

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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France

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French law has no provision for this.

It is, therefore, necessary to refer to the two national agreements of 2005 and 2020. These agreements stipulate that the costs incurred by the employee in the performance of his or her employment contract are borne by the employer. This obligation also applies to teleworkers. However, the national agreement of 2020 sets a few conditions for this coverage: the prior validation of the employer, the expense must be incurred for the needs of the professional activity of the employee and in the interests of the company.

The organisation responsible for collecting social security contributions (URSSAF) has issued a list of expenses that must be covered by the employer. These costs include ink cartridges, paper, telephone and internet subscriptions, electricity, heating, a proportion of rent in certain cases (see below) and home insurance.

The terms and conditions for covering business expenses (maximum amount, the procedure to follow, etc.) may be defined unilaterally by the employer, by mutual agreement between the employee and the employer, or by a collective agreement between the employer and the company's unions. Article 3.1.5 of the national agreement of 2020 and the Ministry of Labour recommend doing everything possible to reach an agreement between the employer and the unions.

If teleworking becomes permanent and the employee no longer has an office on the company's premises, the employer must pay a home occupation allowance.[3]

As for the use of the employee's personal equipment, the principle is that the employer must provide the employee with a computer for teleworking. However, if the employee agrees, they can use their personal equipment (article 7 of the national agreement of 19 July 2005).


[3] Cass. Soc, 14 septembre 2016, n°14-21.893

Last updated on 21/09/2021

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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

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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France

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Cross-border remote working can accentuate some of the problems caused by teleworking or create new ones.

Among the existing problems, the loss of social ties is accentuated if the teleworker decides to work from another country. Indeed, the employee abroad will never physically see his colleagues, which will create a distance between the employee working from abroad and other employees.

Similarly, employers must ensure the protection of the health and safety of workers (article L. 4121-1 labour code). This is a difficult obligation to meet in teleworking, especially because employers do not have access to remote employees’ workplaces. It is even more difficult if the employee works from another country because the sanitary, electrical and other standards are different and potentially less protective than French rules.

As for social security law, in principle, the employee depends on the social security system of the country where they work. The employee can only continue to benefit from the French social security system if they are in a secondment situation. Moreover, this is only a temporary solution because the secondment implies a temporary mission. The employer will therefore have to register the employee with the social security system of the country where they are working, which will cause problems in terms of social contributions.

Another question that may arise is whether an employer should accept a work stoppage prescribed by a foreign doctor.

Finally, another problem that may arise is the employee's right to disconnect. Indeed, the employer and the employee must agree on a time slot during which the employee can not be contacted to respect his private life as much as possible.[4] It can be difficult to establish a time slot that suits both the employee and the employer in case of major time zone discrepancies.


[4] National agreement of November 26, 2020

Last updated on 21/09/2021

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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

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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France

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Teleworkers have the same rights as employees who work from a company's premises (article L. 1222-9 III of the Labor Code).

Employers cannot modify employees’ remuneration without obtaining agreement.[5] This rule also applies to teleworkers.

In some countries such as the United States, employers can adjust the remuneration of teleworking employees to the cost of living in the employee's place of residence. This practice is not prohibited in France but the employer must be careful in doing so as it could constitute discrimination based on the place of residence, which is prohibited by the labour code[6]if it is not justified by objective elements. 

However, employers can withdraw a few benefits from teleworking employees. Indeed, even if the Ministry of Labor says in a Q&A that the telecommuting employee must receive lunch vouchers like other employees, some jurisdictions believe that the employer can stop paying these vouchers to teleworkers because they are not in a comparable situation to employees who work from a company's premises.[7]

As for transportation costs, the employer must cover half of the cost of the transportation pass used to travel to the office and to return home from the office (article L. 3261-2 of the labour code). If the employee does not have to travel to work during the month, the employer does not have to pay transportation costs.


[5] Cass. Soc, 18 oct. 2006, n°05-41.644

[6] Article L. 1132-1 Labour code

[7]TJ Nanterre, 10 mars 2021, n° 20/09616

 

Last updated on 21/09/2021

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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

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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France

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Employers can require that their employees are vaccinated only if the vaccination is made mandatory by the French Public Health Code.

In France, vaccination against covid-19 has not been made mandatory (except for health professionals). Therefore, French employers cannot force their employees to be vaccinated. However, they can recommend it to their employees without forcing them (please note that due to the Law of 5 August 2021, employees are entitled to leave to attend covid-19 vaccination appointments).

Please note that a law was passed by Parliament on 5 August 2021 and states:

  1. To make access to certain places, establishments or events conditional upon the presentation of either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following covid-19 infection.

This would only cover the following activities:

  • recreational activities;
  • bars and restaurants (except company restaurants), including terraces;
  • department stores and shopping centres by decision of the Prefect of the district in the event of risks of contamination under conditions guaranteeing access to essential shops and transport;
  • seminars and trade fairs;
  • public transport (trains, buses, planes) for long journeys; and
  • hospitals, homes for the elderly and retirement homes for companions, visitors and patients receiving care (except in medical emergencies).

In those specific cases, from 30 August 2021, an employer undertaking the above activities may ask their employees to present one of these documents, including proof of vaccination status. If an employee is unable to present such documents and chose, in agreement with their employer, to not use paid holidays, the employer can suspend the employee’s contract, on the same day. This suspension, which can lead to an interruption of salary, ends as soon as the employee produces the required proof.

If the suspension goes beyond three working days, the employer shall invite the employee to a meeting to attempt to rectify the situation, including the possibility of temporarily reassigning the employee to another position within the company not subject to this obligation.

  1. Mandatory vaccination for health professionals, including those working in an occupational health service according to article L.4622-1 of the labour code.

The health professionals listed in article 12 of the law of 5 August 2021 (doctors, nurses, doctors working in occupational health services, osteopaths etc) must be vaccinated as of 9 August 2021, unless there is a medical contraindication or a certificate of recovery can be presented.

Please note that the law provides for a transition period as follows:

  • up to and including 14 September, the staff concerned may present a negative test  that is less than 72 hours old (RT-PCR screening test, antigen test or self-test carried out under the supervision of a health professional) if they are not vaccinated;
  • between 15 September and 15 October inclusive, when an employee has received the first dose of vaccine, he or she may continue to work provided that he or she can present a negative test result; and
  • from 16 October 2021, they must present proof of the complete vaccination schedule.

This obligation does not apply to people who perform occasional tasks. The Ministry of Labour defines “occasional tasks” as a very brief and non-recurring intervention that is not linked to the normal and permanent activity of the company. Workers who carry out these tasks are not integrated into the workgroup and their activity is not public-facing.

This may include, for example, the intervention of a delivery company or an urgent repair.

On the other hand, the following are not occasional tasks: carrying out heavy work in a company (eg, renovation of a building) or cleaning services, because of their recurrent nature.

When carrying out an occasional task, the workers concerned must ensure that they comply with social distancing rules.

Employees who have not presented one of these documents can no longer work. Thus, when an employer finds that an employee can no longer carry out their work, the employee must be informed without delay of the consequences of this prohibition, as well as the means to rectify the situation. A dialogue between the employee and employer to discuss ways of rectifying this situation is encouraged.  An employee who is prohibited from working may, with the employer's agreement, use days of rest or paid leave. Otherwise, their employment contract will be suspended.

The suspension of the contract, which leads to the interruption of salary, ends as soon as the employee fulfils the conditions necessary to continue working.

When the employer or the regional health agency finds that a health professional has not been able to carry out their role for more than 30 days, it informs the national council of the order to which they belong.

Please note that, according to the law of 5 August 2021, the employer must inform the new works council (CSE) of measures taken to implement any obligations to verify the vaccination of health professionals or the health passes of employees who come under the aforementioned sectors.

Last updated on 21/09/2021

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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

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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France

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For employees for whom vaccination is not mandatory, employers cannot make entry to the workplace conditional on vaccination, nor can they threaten to dismiss the employee if they have not had the vaccine.

If an employer makes the return to the company premises conditional on vaccination, they are violating the employees’ privacy and medical confidentiality, and employees may freely refuse it. In case of dismissal, it could be judged null and void since it may violate the employee's privacy and medical secrecy.

On the other hand, for employees working in the above-mentioned establishments (bars, restaurants, department stores, shopping centres etc.), the employer may make the return of the employee to work conditional on the presentation of a health pass (either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following a covid-19 contamination).

Finally, for health professionals, there will be no risk for the employer. The employer will be able to condition the return to the premises on proof of vaccination status.

Last updated on 21/09/2021

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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

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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France

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Please see above (questions 8 and 9) regarding the workplaces and specific industries concerned by making the access to the workplace conditional on individuals having received a Covid-19 vaccination.

Last updated on 21/09/2021

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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

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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France

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Moreover, regarding the processing of data relating to an employee’s vaccination, the CNIL has not yet issued a directive on the specific subject of the processing of employee vaccination data by employers. Because of their sensitive nature, data relating to employee health are subject to special legal protection: they are in principle prohibited from being processed. Employers, therefore, may not keep a list of vaccinated employees, or disclose the names of those who do not wish to be vaccinated.

In fact, according to the CNIL, "because of their sensitive nature, data relating to a person's health are subject to special legal protection: they are in principle prohibited from being processed. In order to be processed, its use must necessarily fall within one of the exceptions provided for by the GDPR, thus guaranteeing a balance between the desire to ensure the security of individuals and respect for their rights and fundamental freedoms. Moreover, their sensitivity justifies that they be processed under very strong conditions of security and confidentiality and only by those who are authorized to do so.

The exceptions that can be used in the context of work are limited and can generally be based on either :

  • the need for the employer to process this data to meet its obligations in terms of labour law, social security and social protection: this is the case for the processing of reports by employees,
  • the need for a health professional to process such data for the purposes of preventive or occupational medicine, (health) assessment of the worker's capacity to work, medical diagnoses etc.

For these reasons, employers who would like to initiate any steps aimed at ascertaining the state of health of their employees must rely on the occupational health services.

The CNIL points out that only competent health personnel (in particular occupational medicine) may collect, implement and access any medical forms or questionnaires from employees/agents containing data relating to their health or information relating in particular to their family situation, their living conditions or their possible movements"

However, we find these exceptions difficult to apply in the context of covid-19.

For employees subject to mandatory vaccination, the law allows the employer, or regional health agency if applicable, to store the result of the check on the proof of vaccination status.

Please note that the employer may not keep the proof of vaccination. In other words, the employer may not keep the QR code, only the “Yes/No” result of the test. Keeping the result is limited in time (currently until 15 November 2021).

The information thus collected is personal data subject to the General Data Protection Regulation (GDPR).

Last updated on 21/09/2021

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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

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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France

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The health and safety considerations for employers in respect of remote workers are the following:

  • Modes of work time control or workload regulation;
  • Determination of the time slots during which the employer can usually contact the remote worker to respect the right to disconnect and the right to privacy;
  • Organise an annual meeting to discuss working conditions and workload; and
  • Evaluate professional risks, in particular those linked to the employee's distance from the colleagues and regulating the use of digital tools.
Last updated on 21/09/2021

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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

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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France

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The pandemic does not strictly speaking have an impact on employers' obligations towards workers' health and safety beyond the physical workplace. But the National Interprofessional Agreement on remote status was renegotiated on 26 November 2020 and strongly raised awareness among employers on those issues to:

  • Communicate within the work community;
  • Adapt the managerial practices: trust and definition of clear objectives;
  • Train managers and employees;
  • Maintain social ties and prevent employees from isolation: it is useful to plan group time, to set up remote communication means to facilitate exchanges, to assist in case of difficulties with computer tools, etc; and
  • Make available to all employees, including those working from home, relevant contacts so that employees in vulnerable situations can use them.
Last updated on 21/09/2021

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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

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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France

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No, the legal and conventional provisions on health and safety at work apply to both mobile workers and workers based primarily at home. It must be taken into account that the employer cannot have complete control over the place where teleworking is carried out and the environment, which is part of the private sphere. This implies an occupational risk assessment adapted to the case of mobile workers and the case of workers based primarily at home.

Last updated on 21/09/2021

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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

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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France

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Employers are liable within the limits of their obligations (see question 12). As long as employers respect these obligations, in case of litigation, it will be up to the employee to demonstrate that the deterioration of their health is related to the employer's failure to respect its obligations.

Last updated on 21/09/2021

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Hong Kong

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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

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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France

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During the pandemic, employers were able to carry out reorganisations involving collective redundancies for economic reasons (subject to justifying a real and serious economic reason as defined by article L.1233-3 of the labour code).

They were also able to negotiate collective performance agreements to meet the needs linked to the operation of the company or to preserve or develop employment by adjusting the working hours of employees, remuneration, and determining the conditions of professional or geographical mobility within the company.

Employers may also have to negotiate or renegotiate agreements or charters on remote status or review their organisation by developing a co-working space, different from the company’s premises, on a regular or occasional basis or in case of exceptional circumstances or force majeure.

Last updated on 21/09/2021

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Hong Kong

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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

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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France

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In general, employees and new works council members have a right to alert and withdraw from any situation which they have reasonable grounds to believe presents a serious and imminent danger to their life or health (article L.4131-1 and L.4121-2 of the labour code).

Apart from these actions, the new works council or the unions will always have the ability to report to the employer any malfunction affecting the entitlements and rights of remote workers.

In any case, please note that employees who wish to terminate their status as a remote worker will have priority to assume resume a non-teleworking position that corresponds to their professional qualifications and skills and to inform the employer of the availability of any such position (article L.1222-10 of the labour code).

Last updated on 21/09/2021

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Hong Kong

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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

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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France

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Remote-working is implemented within a collective agreement negotiated with the unions or, failing that, within a charter drawn up by the employer after the opinion of the new works council if it exists (article L.1222-9 of the labour code).

The collective agreement or, failing that, the charter drawn up by the employer specifies:

  • The conditions for switching to remote status, in particular in case of a pollution episode, and the conditions for returning to performance of the employment contract without remote working;
  • The terms of acceptance by the employee of the conditions of implementation of remote status;
  • The modes of control of the working time or regulation of the workload;
  • The determination of the time slots during which the employer can usually contact the remote worker; and
  • The modes of access to a telework organisation for disabled workers.

The way of negotiation seems to be prioritised by the legislature. Apart from those mandatory clauses, the social partners have every interest in being a force of proposals, which will be accepted or refused by the employer. If the unions refuse to sign the agreement, the employer may provide for these measures in the framework of a charter, which it may implement after the opinion of the new works council (non-binding opinion).

Finally, in the absence of a collective agreement or charter, when the employee and the employer agree to telework, they may formalise their agreement by any means.

Last updated on 21/09/2021

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Hong Kong

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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