Existing and New Employees falling within the Compulsory Group
Yes. If any employee (either new or existing) falls within the Compulsory Group, then the employee will be obliged to take a COVID-19 test according to Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (Cap. 599J).
1.1 If so, is the employer required to provide workplace COVID-19 tests?
No, all compulsory testings are conducted by the government or designated clinics at specific places.
New Employees falling outside the Compulsory Group
Yes. There are no restrictions under the laws and regulations prohibiting employers from making COVID-19 tests obligatory for employees.
Existing Employees falling outside the Compulsory Group
Such an arrangement is unlikely to constitute discrimination under s.61 of the Disability Discrimination Ordinance (Cap. 487).
According to section 32K of the Employment Ordinance (Cap. 57), an employer is allowed to dismiss or vary the terms of the employment contract only under a limited number of conditions, which give sufficient cause to warrant the dismissal of the employee or to vary the terms of the contract of employment.
Making COVID-19 tests obligatory may be considered as varying the terms of employment. However, this point, from our knowledge, has been untested in the Hong Kong courts/Labour Tribunal and should, in any event, depend on the unique circumstances of each case. If the employer is planning to do so, it is advised that the employer should seek legal advice.
1.2 Can an employer voluntarily provide testing in the workplace?
Yes, there are no general restrictions prohibiting employers from providing COVID-19 tests voluntarily to its employees in the workplace. However, such voluntary test results would not be recognised by the government for compulsory testing purposes. As to whether such tests can be made mandatory for employees, refer to the above discussion.