Five Filipina domestic workers terminated after testing positive for COVID-19 [UPDATED with more details about the Disability Discrimination Ordinance]

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Domestic workers at Central. Photo from HK Police

They flew to Hong Kong hoping to start their jobs as foreign domestic workers, but they found themselves terminated right away after contracting the novel coronavirus disease (COVID-19).

Employment updates gathered by Hong Kong News through unimpeachable sources showed that five Filipinos who flew to Hong Kong in July lost their jobs after they tested positive for COVID-19, an illness which has infected at least 4, 080 and killed 52 in the city as of Aug. 10.

Hong Kong’s travel protocols requires all incoming passengers from high-risk areas such as Indonesia and the Philippines – where most of the city’s almost 400,000 foreign domestic domestic workers come from – to be tested and sent to a 14-day mandatory quarantine upon arrival.

The Hong Kong government expanded traveling requirements for such passengers starting July 25, where they were first made to obtain a medical certificate showing that they tested negative for COVID-19 before they can board their flight to Hong Kong. They will be tested again upon their arrival in the city.

Over 30 Filipina domestic workers who were tested in Hong Kong since late July have been confirmed to have contracted the disease. Out of these, 5 have been let go by their employers.

Hong Kong News earlier quoted from an Equal Opportunities Commission briefer on COVID-19 issued in July 2020, which said the following:

“The novel coronavirus falls within the definition of disability under the DDO, which includes the presence of organisms causing or capable of causing disease or illness in the body1. The DDO also covers disability that is “imputed” to a person, i.e.thought or suspected to exist in a person,” the EOC said in July.

“However, under the DDO, it is not unlawful to discriminate against an employee with a disability if: (i) the disability is an infectious disease listed under the Prevention and Control of Disease Ordinance (e.g. COVID-19); AND (ii) the discriminatory act is reasonably necessary to protect public health.”

The said information as previously presented in our initial report does not unfortunately convey all the conditions or the complete picture, however and to address and correct any confusion which we may have regretfully inadvertently caused, we are quoting in verbatim what Sam Ho, EOC’s corporate communications manager relayed to us:

An exception to unlawful disability discrimination applies in relation to infectious diseases. It is not unlawful to discriminate against an employee with a disability if the disability is an infectious disease listed under the Prevention and Control of Disease Ordinance (e.g. COVID-19), but only where the discriminatory act is “reasonably necessary” to protect public health.
To consider whether a certain act is “reasonably necessary” when dealing with infectious disease, an employer needs to consider the nature and duration of risk the infectious disease would cause to the organisation’s operations, the possibility of transmission including the severity of the consequence of transmission and the function which the person infected performs. Blanket application of this exception without due consideration of the above criteria could result in unlawful acts.
For example, during the SARS epidemic, a clerk of a trading company was dismissed due to the fact that she had contracted the disease. Her employer feared that she would spread the disease at the workplace and held that public health was the reason for her dismissal. In this case, dismissing the clerk does not appear to be a reasonably necessary act to protect public health and therefore would still amount to unlawful discrimination. As SARS is a treatable disease, a reasonable measure in this case would be to allow an appropriate period of time for sick leave.
 In relation to situations involving COVID-19, persons diagnosed with the disease are likely to be hospitalized and take statutory sick leave to which they are entitled under the Employment Ordinance. A person would not be able to return home or resume employment until they have tested negative for the virus and have physically recovered. In such circumstances, it is unlikely that it would be “reasonably necessary” to dismiss an employee with the virus or after they have recovered. The same principles apply to any employees in Hong Kong, including Foreign Domestic Workers.
The five domestic workers can opt to leave and go back to the Philippines or stay here and find a new employer.

Foreign domestic workers have 14 days to find a new employer, though new policies introduced by the Labour Department since February have enabled them to file for a one-month visa extension and find new employers here under a visitor visa.