2021: Key employment law changes in HK

A leading law firm rounds up recent developments that are likely to shape the year ahead

2021: Key employment law changes in HK

As the year marches on, here are some key trends and recent developments in employment law that are likely to shape the year ahead. The article highlights new and forthcoming changes in five critical areas.

  1. Extension of statutory maternity leave

With effect from December 11, 2020, statutory maternity leave has been extended to 14 weeks from the previous ten weeks. The HKSAR government has committed to reimburse employers for the additional four weeks’ maternity leave pay, subject to a cap of HK$80,000 per employee.

The Labour Department has launched an online portal to facilitate electronic submission of applications by employers for the reimbursement of maternity leave pay. If they have not already done so, employers are recommended to review their maternity leave policies and practices to align them with the extended period of statutory maternity leave.

Read more: Hong Kong’s latest anti-discrimination laws: A guide

  1. Protection against discrimination and harassment for breastfeeding women

On March 17, 2021, the Legislative Council passed the Sex Discrimination (Amendment) Bill 2020 to further strengthen the legal protection for breastfeeding women by introducing protection from harassment on the grounds of breastfeeding.

The protection against breastfeeding harassment, together with the protection against breastfeeding discrimination introduced under the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020, will come into force on June 19.

Employers should update their discrimination and harassment policies in preparation for the forthcoming change, and ensure that their workplace practices are compliant with the new legislation.

  1. Launch of EOC anti-sexual harassment unit and hotline

In November 2020, the Equal Opportunities Commission (EOC) established an Anti-Sexual Harassment Unit (ASHU) to strengthen efforts to combat sexual harassment through prevention, research, policy advocacy, policy guidance and training.

On January 25 2021, the EOC announced the launch of an Anti-Sexual Harassment Hotline manned by the ASHU, the goal of which is to provide members of the public with information on provisions of the law, advice on where to lodge complaints of sexual harassment and seek redress, and referral to counselling and therapy services.

Read more: 70% of employees afraid to report sexual harassment

  1. Proposed modernisation of data privacy laws

The Hong Kong government is formally considering amendments to the Personal Data (Privacy) Ordinance to update and modernized Hong Kong’s data privacy laws.  The Panel on Constitutional Affairs published a discussion paper in 2020 which is aimed at strengthening the protection of personal data.

The key areas for change include:

  • implementing a mandatory data breach reporting mechanism
  • imposing new data retention governance requirements
  • expanding the Privacy Commissioner’s powers
  • introducing direct regulation of data processors
  • expanding the definition of personal data
  • implementing regulation on the practice of “doxxing” (i.e., publishing private or identifying information about a person without consent, typically with malicious intent)
  1. Proposed increase in statutory holidays

On March 5, 2021, the HKSAR government gazetted the Employment (Amendment) Bill 2021, which seeks to increase progressively the number of statutory holidays, from 12 days to 17 days, by five increments at two-year intervals from 2022 to 2030.  If this legislation is enacted, it will align the statutory holiday regime with the existing public holiday regime in Hong Kong.

Even in the midst of a global pandemic, Hong Kong employment law continues to develop and evolve, with a raft of recent and forthcoming changes for employers to consider.

Sarah Berkeley is partner, and Jane Chan, an associate at Simmons & Simmons.

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