The SUN HK : HK tells employers, firing FDHs who catch Covid-19 illegal

By Vir B. Lumicao

An infected FDH shares photo inside an isolation ward at HK hospital (File)

Dismissing foreign domestic helpers who have contracted the coronavirus disease is against the Employment Ordinance and the standard employment contract, the Hong Kong government reminded employers today, Nov 3.

A government advisory said that employers who fire their helpers who have been sick of Covid-19 are liable to prosecution and a fine of up to $100,000 if convicted.

“We would like to remind employers that they should not terminate or repudiate an employment contract with an FDH who has contracted Covid-19,” the statement said.

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“Under the EO, an employer is prohibited from terminating the contract of employment of an employee on his or her paid sickness day, except in cases of summary dismissal due to the latter’s serious misconduct.”

Consul General Raly Tejada welcomed the news, and credited the Philippine Consulate General (PCG)’s assistance to nationals section for getting the HK government to make its stand on the issue clear.

“This is the product of PCG’s hard work, especially its ATN section who quietly lobbied Hong Kong authorities to arrest seemingly arbitrary dismissals. Basically, we told Hong Kong authorities to remind employers that there is no basis for them to dismiss sick workers as it is against the law,” ConGen Tejada said when asked to comment on the report.

ConGen Tejada says the HK govt warning was made at the behest of the Consulate

“Things came to a head when even newly arrived workers who tested positive at the airport were dismissed by employers even after being treated and certified Covid-free. Worse some (about 4) were sent back to the Philippines. We welcome Hong Kong’s official and clear statement that it is against the law to dismiss sick workers,” he said.

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ConGen Tejada was referring to a string of cases that started with Ermelyn Deño being escorted to Hong Kong airport by immigration officers on Sept 19, straight from her discharge from Pamela Youde Nethersole Eastern Hospital. She spent a week at the hospital after testing positive on arrival in Hong Kong.

Despite HK Immigration’s denial that they had taken a firm stance against FDHs testing positive on arrival, three other newly arrived Filipina migrant workers suffered the same fate.

Cynthia Abdon-Tellez, general manager of the Mission for Migrant Workers, said the government statement merely echoed what they had been saying all along, that the dismissal of sick domestic workers violated the Employment Ordinance.

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Technically, this reminder should cover the four Filipina new arrivals in September who tested positive and were sent back home by Hong Kong Immigration without stamping their passports after hospital confinement, said Tellez.

Deno's visa was not stamped on arrival, as if she never entered HK

She said the Mission is trying to help Deño pursue her employer for compensation, but with the worker not being in Hong Kong, the task is not easy. However, there are several avenues for redress that are being looked into, including the Equal Opportunities Commission and the Labour Department.

Marites Palma, founder of Social Justice for Migrant Workers, expressed hope that all the four FDWs who were sent back to Manila will still be able to claim compensation from their employers who rejected them even after they were certified virus-free.

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Contacted by The SUN for an explanation for the hasty removal from Hong Kong of the four, Immigration said the workers were “removed” because their employers had changed their minds after they tested positive for Covid-19.

Today’s advisory warned employers against repudiating their contracts with their previously infected helper, saying this could also violate the Disability Discrimination Ordinance.

The statement said that upon recovery of the infected helpers, employers should let them start or resume work and maintain a cordial employment relationship with them.

“When handling matters on employment with FDHs, employers should observe their obligations and requirements under the EO and the SEC. Where applicable, the employer should grant sick leave and sickness allowance to the eligible FDH in accordance with the EO,” the statement said.

“Where a sick FDH has not accumulated sufficient paid sickness days to cover the period of his or her sick leave, we appeal to the employer to be compassionate and consider granting the FDH paid sick leave.”

The statement cited Clause 9(a) of the standard employment contract which states that if the helper falls ill or suffers personal injury during the period of employment, regardless of whether this arises out of employment, the employer shall provide free medical treatment to the helper.

The only exception is when the helper falls ill after leaving Hong Kong of his or her own volition and for his or her own personal purposes.

Employers were also reminded to comply with relevant anti-Covid-19 measures implemented by the government, such as requiring all persons including FDHs arriving in Hong Kong to undergo compulsory 14-day quarantine.

The measures include requiring a traveler from abroad, including Indonesia and the Philippines, to provide a certificate of negative nucleic acid test report issued by a government-recognized laboratory before boarding a flight to Hong Kong. The test must be taken within 72 hours of the flight departure.

The government again reminded employers to arrange and pay for the costs of the test and the compulsory 14-day hotel quarantine of the helper, and provide food allowance during quarantine.

But at the same time, the government repeated its warning against the termination of contracts by FDWs who merely want to change employers, often referred to as “job hopping.”

While it has speeded up the processing of work contracts of FDWs who are in Hong Kong, Immigration will continue scrutinizing the details of applicants, particularly the number and reasons for their termination in the past 12 months.

Those deemed to be job hoppers will have their applications denied, and will be sent home.