The COVID-19 pandemic has created many challenges for employers and employees, including whether COVID-19 falls within the scope of protections afforded by employees' compensation legislation.

Under the Employees' Compensation Ordinance (ECO), employers are generally liable to pay compensation to employees who:

  • sustain an injury or die as a result of an accident arising out of and in the course of their employment; or
  • suffer from an occupational disease specified in the Second Schedule of the ECO.

However, COVID-19 is not currently an occupational disease specified in the Second Schedule.

On 10 February 2020 the government indicated that it had commenced a study on the proposal to amend the law, but the amendment can be made only when definite medical and epidemiological information on COVID-19 is available (ie, whether a definite causal relationship exists between COVID-19 and a certain type of work and whether COVID-19 occurs among the exposed workers at a significantly higher rate than in the general population). In any event, the government also pointed out that if an employee contracts COVID-19 by accident arising out of and in the course of their employment, they should inform their employer immediately so that the employer can notify the Labour Department.

On 29 April 2020 the secretary for labour and welfare reiterated that COVID-19 is not currently a compensable occupational disease prescribed under the ECO. However, Section 36 of the ECO stipulates that an employee contracting a disease not prescribed as an occupational disease may still claim compensation from their employer under the ECO if it is an injury or death by accident arising out of and in the course of their employment.

Therefore, employers should promptly notify the Labour Department and their insurance providers if an employee contracts COVID-19 in the course of their employment. Employers should also check whether their employee compensation insurance adequately covers claims associated with COVID-19 or whether any updates to their policies are required.