In terms of helpers, since the outbreak of COVID-19, there have been countless difficulties faced by maids, including:
Increased workload
Less time off
Worried about being discriminated against after contracting the disease
Fear of being fired after going out on a day off
As for employers, due to media reports and the spread of social media, some employers may be over-infected and strengthen home hygiene protection. General hygiene precautions are appropriate, such as frequent hand washing and hand sanitizing with alcohol-based hand sanitizer. However, if employers require maids to comply with the following excessive hygiene protection requirements, maids may feel at a loss and feel discriminated against:
Require maids not to go out at all on rest days, even if they need to stay at home for meals
Requiring maids to wear protective clothing for long periods of time
Ask the helper to go to the public toilet downstairs only when using the toilet
If the employer has excessive and unreasonable requirements in terms of health protection, there is a chance to accidentally violate the following relevant regulations:
Sex Discrimination Ordinance
Disability Discrimination Ordinance
Family Status Discrimination Ordinance
Racial Discrimination Ordinance
The Sunlight Employment Agency recommends that when there is a disagreement between the two parties in the practices of health protection, the two parties can first try to communicate to resolve the problem. If the disagreement is serious and cannot be resolved through communication, please contact your employment agency immediately. A reputable center will generally provide the following assistance to both parties:
Understand the incident from both sides from a neutral point of view, and then make mediation
Translation services
Counselling service
In addition, Sunlight Employment Agency has prepared the following scenarios to help maids and employers understand how to deal with related problems in different situations.
Scenario one:
After Maria, a Filipino maid, returned home from a vacation with friends, Mrs. Chen thought that Maria might be infected with the new coronavirus, so she immediately fired her. Does the Disability Discrimination Ordinance apply?
Ans: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 illnessin the body
. The DDO also covers disability that is “imputed” to a person, i.e.thought or suspected to exist in a person.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.
When considering whether a certain act is “reasonably necessary”, employers
should take into account the fact that the Government has been monitoring the
latest developments of the pandemic and implementing social distancing measures
as needed. Moreover, if an employer is concerned about infection risks after the
FDW has gone out on a rest day, the employer may first consider asking the FDW to
adopt preventive practices once she/he returns home (e.g. washing hands,
changing clothes, taking a shower, etc.) and, when necessary (e.g. when symptoms
emerge), to get tested.
Given the above, it may not be “reasonably necessary” for the purpose of protecting
public health to dismiss an FDW when she/he returns home after a day out simply based on the perception or speculation that she/he has been infected with the novel coronavirus. As such, the dismissal might risk violating the DDO.
Scenario two:
Maria had previously contracted the novel coronavirus but has since recovered. Can her employer fire her when she recovers?
Ans: Since former illnesses (or former infections capable of causing disease) fall within the definition of disability under the DDO3, it may be unlawful for an employer to treat an FDW less favourably (e.g. by dismissing her/him) because she/he was previously infected with the novel coronavirus.
Scenario three:
Maria was fired by her employer while she was in mandatory 14-day quarantine. Is this legal?
Ans: While the anti-discrimination law enforced by the EOC may or may not apply (subject to the specific circumstances of the case, e.g. whether the dismissal was based on the FDW’s real or suspected infection of the novel coronavirus), the Labour Department has stated that if an employee has been ordered by a Health Officer to be put under medical surveillance or quarantine, then the employer would need to grant sick leave to the employee according to the requirements under the Employment Ordinance or the relevant employment contract.
Situation Four:
Maria fears her employer will fire her if she lodges a complaint with the EOC.
A:
Discrimination by way of victimisation is prohibited under the DDO4. It is unlawful for an employer to victimise, i.e. treat an employee less favourably (e.g. by dismissing her/him) because the employee has lodged a complaint with the EOC under the DDO.
