- Is there any legislation relating to working from home in your country?
- How can working from home be implemented in a company (e.g. through collective bargaining agreements, a unilateral decision, employment contracts)?
- Can an employer force an employee to work from home?
- Can an employee force an employer to allow them to work remotely?
- Does an employer have to provide the employee with office equipment and supplies for remote working?
- Does a company have to reimburse an employee for expenses incurred while working from home?
- Does an employer have to grant an employee a specific allowance for working from home? If so, under what conditions does an employer not have to pay such an allowance?
- For employees who work remotely, is the employer responsible for ensuring proper working conditions from a health and safety perspective?
- Are there any other specific obligations for the employer?
- Does an employee need to be insured to work from home?
- Is an employee who works from home protected by legislation for work-related accidents and illnesses?
- Is an employer permitted to charge its employees a “reimbursement for working from home” for costs saved? (Saved expenses could include the employee’s reduced costs for transportation, petrol, lunches in restaurants and dry-cleaning charges for office attire).
- Are there any other specific obligations on the employee?
- Have there been any legislative changes, or updates to immigration rules, designed to encourage short-term remote working in your country (compared to the rules normally found in other countries)?
- What is meant by remote work abroad and do national regulations exist in this regard?
- Which labour law provisions are applicable during remote work abroad?
- Do employees remain in the previous social security system during remote work abroad?
- What applies in terms of tax law to short-term remote work abroad, especially after or before a holiday?
- What needs to be considered in terms of residence law?
- Any other comments?
jurisdiction
1. Is there any legislation relating to working from home in your country?
Currently, there is no specific legislation that governs working from home in Hong Kong. However, the common law and the following legislation are generally applicable:
- Employment Ordinance (Cap. 57);
- Employees’ Compensation Ordinance (Cap. 282) (ECO);
- Occupational Safety and Health Ordinance (Cap. 509) (OSHO); and
- Personal Data (Privacy) Ordinance (Cap. 486).
2. How can working from home be implemented in a company (e.g. through collective bargaining agreements, a unilateral decision, employment contracts)?
Working from home can be implemented through various means including collective bargaining agreements, written employment contracts, mutual agreements, unilateral decisions or internal policies.
3. Can an employer force an employee to work from home?
Generally, no, unless the employment contract stipulates that the employee is to carry out his/her duties by working from home or the employer has reserved the right to unilaterally change the place of work in the employment contract.
However, it should be noted that employers are under both statutory (i.e. OSHO) and common law duties to take reasonable care to ensure the safety of their employees at work. Such duties would generally extend to employees working from home.
4. Can an employee force an employer to allow them to work remotely?
Generally, there is no statutory right to work from home in Hong Kong, and therefore the employee cannot force an employer to allow him/her to work remotely unless working remotely (i.e. from home) is stipulated in the employment contract.
5. Does an employer have to provide the employee with office equipment and supplies for remote working?
While there is no statutory obligation on the employer to provide the employee with office equipment and supplies for remote work, the employer may need to provide necessary equipment and/or supplies for the employee to carry out his/her duties safely.
Moreover, the Office of the Privacy Commissioner for Personal Data of Hong Kong has issued three guidance notes on Protecting Personal Data under Work-from-Home Arrangements. As explained by the Commissioner, “organisations should, as far as practicable, provide their employees with electronic devices (such as smartphones and notebook computers) under WFH arrangements as employees’ own personal devices may be more vulnerable in data security.”1 As such, employers may consider providing the employees with the necessary electronic equipment and other software to minimise cybersecurity risks.
6. Does a company have to reimburse an employee for expenses incurred while working from home?
Generally, no. However, this is subject to the terms of the employment contract, the internal policies of the company and whether the expenses were required and incurred for the purpose of working from home.
7. Does an employer have to grant an employee a specific allowance for working from home? If so, under what conditions does an employer not have to pay such an allowance?
No, but this is subject to the provisions of the employment contracts and/or the company’s internal policies.
8. For employees who work remotely, is the employer responsible for ensuring proper working conditions from a health and safety perspective?
Yes, see the answers to questions 3 and 5 above.
9. Are there any other specific obligations for the employer?
As mentioned in question 5 above, the Commissioner has issued guidance notes on data protection under the work-from-home arrangement. Under the guidance notes, employers are advised to provide sufficient training and support to their employees to ensure data security (e.g. on use of encryption, awareness about phishing) and implement the use of VPN and other security measures for remote access to the corporate networks.
10. Does an employee need to be insured to work from home?
Yes. According to s.40 of the ECO, no employer shall employ any employees in any employment unless a policy of insurance is in force to cover liabilities under the law (including the common law) for injuries at work for all employees, regardless of the work venue.
On a practical note, employers should check with their insurers to ensure that the relevant policies cover work from home or flexible work arrangements. If the policy does not include such terms, an extension or other terms should be considered before implementing the relevant work-from-home policy.
An employer who fails to secure insurance cover in accordance with ECO is liable to prosecution and, upon conviction, to a maximum fine of HKD 100,000 and imprisonment for two years. In this connection, under the Employees' Compensation Assistance Ordinance (Cap. 365), an employer who fails to comply with the compulsory insurance requirement (i.e. s.40 of the ECO) is liable to pay a surcharge to the Employees Compensation Assistance Fund Board.
11. Is an employee who works from home protected by legislation for work-related accidents and illnesses?
Yes. Employees are entitled to compensation under the ECO for injuries or death caused by accidents arising out of or in the course of employment or prescribed occupational diseases. Although an employee may be working from home, an accident to an employee is deemed to arise out of or in the course of employment if the act was committed by the employee for the purposes of and in connection with the employer's trade or business.
12. Is an employer permitted to charge its employees a “reimbursement for working from home” for costs saved? (Saved expenses could include the employee’s reduced costs for transportation, petrol, lunches in restaurants and dry-cleaning charges for office attire).
Generally, no. However, this depends on the terms of the employment contract and the company’s internal policies.
13. Are there any other specific obligations on the employee?
As mentioned in question 5 above, the Commissioner has issued guidance notes on data protection under the work-from-home arrangement. Under the guidance notes, employees are advised to avoid working in public places and connecting work devices to public Wi-Fi, using work devices for personal matters, using personal email accounts or personal instant messaging applications for work and transferring paper documents out of office.
14. Have there been any legislative changes, or updates to immigration rules, designed to encourage short-term remote working in your country (compared to the rules normally found in other countries)?
No.
15. What is meant by remote work abroad and do national regulations exist in this regard?
In Hong Kong, remote work abroad refers to situations where employees work from a location outside of Hong Kong, which can be their home or any other place that is not the employer’s premises.
In Hong Kong, there is no statutory provision in which an employer can require its employees to work remotely outside of Hong Kong. Likewise, employees do not have a statutory right to insist that they be able to work remotely overseas. Any remote-work arrangement is purely a matter of contract between an employer and its employees, although it must not violate any law. In particular, it must not contravene any legislation prohibiting discrimination, harassment, victimisation and vilification on certain grounds such as sex, pregnancy, marital status (Sex Discrimination Ordinance (Cap 480)), disability (Disability Discrimination Ordinance (Cap 487)), family status (Family Status Discrimination Ordinance (Cap 527)) or race, whether direct or indirect (Race Discrimination Ordinance (Cap 602)).
16. Which labour law provisions are applicable during remote work abroad?
All Hong Kong employment laws and protections continue to apply while the employee temporarily works remotely overseas. Employers and employees may mutually agree to vary the employment contract to factor in the remote work arrangement. However, any agreement in contravention of the Employment Ordinance (EO) is void. The employment relationship may also be subject to the employment protections in the overseas jurisdiction irrespective of any agreement with the employee. Applicable foreign legal advice should be sought as there may be onerous obligations from an employer’s perspective.
17. Do employees remain in the previous social security system during remote work abroad?
Section 4 of the EO provides that the EO applies to "every employee engaged under a contract of employment". There is no statutory proviso that the work must be carried out in Hong Kong for the EO to apply. Thus, if the employment contract is governed by Hong Kong law, all local employment statutes and safeguards are applicable, regardless of where the work is actually carried out. Essentially, the rights and protections granted to employees under the EO and related laws are maintained with the employee, no matter their work location.
18. What applies in terms of tax law to short-term remote work abroad, especially after or before a holiday?
Generally, an employee working from an overseas jurisdiction may be liable to tax in both Hong Kong and the overseas jurisdiction. This may occur if an employee’s stay in the foreign country surpasses the period whereby the employee is considered to have a tax presence there, regardless of the stay’s purpose or whether the days are consecutive. A double tax treaty (DTT) between Hong Kong and the foreign country may offer tax relief, assuming certain criteria are met.
In Hong Kong, individuals are responsible for their own salary tax payments. However, in some countries, employers are responsible for deducting the necessary taxes from an employee’s wages and remitting these to the tax authorities. Employees would likely also have their own obligations to pay applicable income tax in foreign countries. Therefore, employers and employees should obtain local tax advice before permitting employees to work remotely from another country.
Furthermore, an employer may establish a taxable presence in a foreign country based on factors such as the duration of an employee’s stay, the number of employees working there, and the nature of their work activities. If a taxable presence is established, the employer may be required to pay corporate taxes in that country.
19. What needs to be considered in terms of residence law?
Unless the employee is a national or resident of the overseas jurisdiction, the individual will generally have no right to work under a visitor visa or rights restricted in scope (e.g. meetings or training) under a business visa. The employer could face legal consequences if the employee breaches the immigration regulations of the foreign country.
Moreover, if an employee works abroad for over six months in a row, it might disrupt the continuous residency requirement in Hong Kong, which necessitates seven years of residence to qualify for permanent residency.
